87747508 (T.T.A.B. Jan. 23, 2020)

Ness Goods, LLC

Trademark Trial and Appeal BoardJan 23, 2020

87747508 (T.T.A.B. Jan. 23, 2020)

Mailed: January 23, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Ness Goods, LLC _____ Application Serial No. 87747508 _____ Songfong Tommy Wang of Wang IP Law Group, P.C. for Ness Goods, LLC. Jonathan Ryan O’Rourke, Trademark Examining Attorney, Law Office 104, Zachary B. Cromer, Managing Attorney. _____ Before Bergsman, Coggins and English, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Ness Goods, LLC (Applicant) seeks registration on the Principal Register of the mark NESSENCE, in standard character form, for “Facial masks; Facial beauty masks; Body and beauty care cosmetics,” in Class 3.1 The Examining Attorney refused to register Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so 1 Application Serial No. 87747508, filed January 8, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in commerce. This Opinion Is Not a Precedent of the TTAB Serial No. 87747508 - 2 - resembles the registered mark NESCENS, in standard character form, for the goods listed below as to be likely to cause confusion, mistake or deception: Cosmetics, cosmetic preparations for the treatment of age- related skin alteration, soaps, perfumery, essential oils creams, milks, lotions, gels, powders, serums, masks and scrubs for cosmetic use for facial and body care; restructuring creams, lotions and serums for cosmetic use; cosmetic preparations for slimming purposes; cosmetic preparations for the shower and/or bath; tanning and after- sun milks, gels and oils; make-up; make-up removing preparations; depilatory preparations, in Class 3.2 We base our Section 2(d) determination on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. 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. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “Not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered.” 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)); see also M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); 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.”). “[E]ach case 2 Registration No. 3987944, registered July 5, 2011; Sections 71 and 15 declarations accepted and acknowledged. Serial No. 87747508 - 3 - must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (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 In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). I. The similarity or dissimilarity and nature of the goods. As noted above, Applicant is seeking to register its mark for “Facial masks; Facial beauty masks; Body and beauty care cosmetics” and Registrant’s description of goods contains, inter alia, “cosmetics” and “masks . . . for cosmetic use for facial . . . care.” Registrant’s cosmetics incorporates Applicant’s body and beauty care cosmetics, and Registrant’s masks for cosmetic use for facial care are equivalent to Applicant’s facial masks. Accordingly, the goods are in part identical. Under this DuPont factor, the Examining Attorney need not prove, and we need not find, similarity as to each product listed in the description of goods. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any Serial No. 87747508 - 4 - item encompassed by the identification of goods in a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application.”). Applicant argues that because the parties’ goods all fall generally within the cosmetic industry, the goods are only tangentially related.3 Applicant goes on to explain that: Applicant is a California-based company that uses its mark with the sale of sheet masks, which are “face-shaped sheet fabrics soaked in nutrition-packed solution.” See Exhibit 3. Specifically, Applicant engages in the sale of sheet masks using natural ingredients, which are priced at $49.99 per box of five masks. April 15, 2019 Request for Reconsideration, TSDR p. 39-48. Conversely, Registrant is a company based in Switzerland which specializes in “anti- aging science,” using its mark with a “complete anti-aging support program” including a broad range of cosmetic products, treatments, spa programs, medical assessments, and consulting services which utilize “Swiss stem cell science,” among other research-based methods which are overseen by a “scientific committee.” April 15, 2019 Request for Reconsideration, TSDR p. 49-83. Registrant’s sale of cosmetics, dubbed “cosmeceuticals,” include a complete system of skincare products with a majority of items priced from around 100 Swiss Francs up to 555 Swiss Francs. Id. The only masks Registrant sells are a “Bio- Identical Reconstituting Mask for 225 Swiss Francs and a 3 Applicant’s Brief, p. 11 (9 TTABVUE 12). Serial No. 87747508 - 5 - “Renewing Gel Mask – Eye Contour Area” for 140 Swiss Francs. As the United States Dollar and Swiss Franc are currently valued approximately at a ratio of 1:1 on the International Exchange, Registrant’s pricing would translate to the same amounts in U.S. Dollars. Id. at 89-98. As such, Registrant not only operates in an entirely different country and currency than that of the Applicant, but offers its goods at prices three to five times higher than the price of Applicant’s goods. Id. at 49-83. Even if, as the Examiner argues, both Applicant and Registrant are not limited to the price point in which they sell goods bearing their marks, this extrinsic evidence is highly probative of whether confusion is actually likely to occur.4 However, we must consider the goods as they are described in the application and registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs. 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 regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed.”). See also Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods”). In addition, the Examining Attorney is correct that notwithstanding Applicant’s argument and evidence regarding the actual scope of its own and the cited 4 Id., pp. 12-13 (9 TTABVUE 13-14). Serial No. 87747508 - 6 - Registrant’s commercial use of its mark, we may not limit, by resort to extrinsic evidence, the scope of goods as identified in the cited registration or in the subject application. E.g., In re Dixie Rests. Inc., 105 USPQ2d, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Fisher Scientific Co., 440 F.2d 43, 169 USPQ 436, 437 (CCPA 1971); In re La Peregrina Ltd., 86 SPQ2d 1645, 1646 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). We find that the goods, as broadly identified in the application and registration, are in part identical and that this DuPont factor weighs in favor of finding that there is a likelihood of confusion. II. Established, likely-to-continue channels of trade and classes of consumers. Because the goods described in the application and the cited registration are in part identical, we presume that the channels of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are presumed to travel in same channels of trade to same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018), aff’d mem. (No. 18-2236) (Fed. Cir. September 13, 2019) (“Because the services described in the application and the cited registration are identical, we presume that the channels of trade and classes of purchasers are the same.”); United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). Serial No. 87747508 - 7 - Applicant argues that Applicant’s products and Registrant’s products appeal to different classes of consumers. [E]ven if the price of Applicant and Registrant’s goods are not permitted to narrow the scope of goods stated in their respective applications, such extrinsic evidence is probative of not only the conditions of sale and types of consumers Applicant and Registrant appeal to, but directly informs the circumstances under which confusion might be probable. Those purchasing high-end, luxury skincare touting “Swiss stem cell science” for several hundreds of dollars per item are not the same consumers purchasing Applicant’s face masks in packs of five, amounting to $9.99 per mask.5 As with the analysis of the similarity or dissimilarity and nature of the goods, it is well established that “absent restrictions in the application and registration, [identical] goods and services are presumed to travel in the same channels of trade to the same class of purchasers.” Viterra, 101 USPQ2d at 1908 (quoting Hewlett- Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983))). The description of the goods in an application for registration is critical because any registration that issues will carry that description. Moreover, although a registrant’s current business practices may be quite narrow, they may change at any time from, for example, industrial sales to individual consumer sales. CBS, 218 USPQ at 199. Applicant’s goods are not limited to any particular channels of trade or methods of distribution, nor to any particular class of consumers. They are 5 Applicant’s Brief, p. 13 (9 TTABVUE 14). Serial No. 87747508 - 8 - identified so broadly that they could include any facial masks or cosmetics. Because marketing practices are subject to change, Applicant need not refrain from offering its products through the same channels of trade and to the same classes of consumers as Registrant. We find the established, likely-to-continue channels of trade and classes of consumers are presumed to be the same, and that this DuPont factor weighs in favor of finding that there is a likelihood of confusion. III. The conditions under which sales are made. Applicant argues that consumers for skincare products exercise a high degree of consumer care. Even if both Applicant’s goods and Registrant’s goods were considered expensive in relation to the average skincare budget, those with high skincare budgets constitute sophisticated purchasers who exercise a high degree of care when making purchasing decisions. Registrants pride themselves on implementing cutting edge scientific technology to produce a comprehensive anti-aging system that is marketed towards those looking to spend significant sums to achieve the program’s full benefits. April 15, 2019 Request for Reconsideration, TSDR p. 49-88. As such, Registrant’s consumers are sophisticated and knowledgeable in the field of scientifically-backed skincare and would exercise a high degree of care in purchasing the same due to the price.6 Again, Applicant relies on improper extrinsic evidence to support its contention that relevant consumers will exercise a heightened degree of consumer care when purchasing Applicant’s or Registrant’s products. See In re Bercut-Vandervoort, 229 6 Applicant’s Brief, pp. 14-15 (9 TTABVUE 15-16). Serial No. 87747508 - 9 - USPQ at 764 (evidence that relevant goods are expensive wines sold to discriminating purchasers must be disregarded given the absence of any such restrictions in the application or registration). In addition, case law requires us to consider “the least sophisticated consumer in the class” when analyzing the conditions under which sales are made. Stone Lion Capital Partners, 110 USPQ2d at 1163-64. Because there are no limitations as to channels of trade, classes of purchasers, or price points in the description of goods in Applicant’s application or the cited registration, it is presumed that Applicant’s and Registrant’s goods move in all channels of trade normal for those goods, and that they are available to all classes of purchasers for those goods, including unsophisticated consumers. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); Paula Payne Prods., 177 USPQ at 77. We find that the conditions under which sales are made is a neutral factor. IV. The strength of Registrant’s NESCENS mark.7 When making a determination of likelihood of confusion in an ex parte appeal, in order to determine the conceptual strength of the cited mark under the sixth DuPont factor, we evaluate its intrinsic nature, that is, where it lies along the generic- descriptive-suggestive-arbitrary-fanciful continuum of words. Word marks that are arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000). See 7 The Examining Attorney did not submit any evidence regarding the commercial strength of Registrant’s mark and Applicant did not submit any evidence regarding the number of similar marks in use on similar goods (the sixth DuPont factor). Serial No. 87747508 - 10 - also, In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir. 2010) (“In general, trademarks are assessed according to a scale formulated by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’ ‘suggestive,’ ‘descriptive,’ or ‘generic.’”). The Examining Attorney submitted evidence that Registrant’s mark NESCENS does not have a dictionary definition.8 Thus, Registrant’s mark NESCENS appears to be a fanciful term and therefore an inherently strong mark. Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173, 1181 (Fed. Cir. 2004) (defining a fanciful mark as “a non-dictionary word concocted by the trademark holder for its product” and observing that such marks are typically strong); Mishawaka Rubber & Woolen Mfg. Co. v. Bata Narodni Podnik, 222 F.2d 279, 105 USPQ 432, 437 (CCPA 1955) (“A strong and fanciful mark is entitled to broad protection.”); In re Ginc UK Ltd., 90 USPQ2d 1472, 1479 (TTAB 2007) (completely unique and arbitrary, if not coined, nature of mark in relation to goods entitles the registered mark to a broad scope of protection, and significantly increases the likelihood that the marks, when used in connection with the identical goods would 8 November 8, 2018 Office Action (TSDR 69-73). See also Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2020) accessed on January 21, 2020. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). All citations to documents contained in the Trademark Status & Document Retrieval (TSDR) database are to the downloadable .pdf versions of the documents. Serial No. 87747508 - 11 - cause confusion). See also Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 230 USPQ 831, 834 (2d Cir. 1986) (a fanciful mark “is entitled to the most protection the Lanham Act can provide”). This factor weighs in favor of finding that there is a likelihood of confusion. V. The similarity or dissimilarity of the marks. We now turn to the DuPont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d at 1746 (quoting 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.”) (citation omitted). In comparing the marks, we are mindful that where, as here, the goods are in part identical, 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. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007). “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ Serial No. 87747508 - 12 - such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, 127 USPQ2d at 1801 (quoting Coach Servs., 101 USPQ2d at 1721). See also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are cosmetics and facial masks, the average customer is an ordinary consumer. Applicant’s mark is NESSENCE and Registrant’s mark is NESCENS. While not identical, the marks are similar in appearance and sound, in part, because the first syllable in each mark starts with “NESS” or “NES” and the second syllable has similar letters albeit in a different order (ENCE vs. CENS). “[E]xact similitude is not required to conclude that two marks are confusingly similar.” Hercules Inc. v. Nat’l Starch & Chem. Corp., 223 USPQ 1244, 1246 (TTAB 1984) (NATROL is similar to NATROSOL). See also Russell Chem. Co. v. Wyandotte Chem. Corp., 337 F.2d 660, 143 USPQ 252 (CCPA 1964) (SENTOL for industrial detergents adapted for cleaning Serial No. 87747508 - 13 - dairy equipment is similar to SENTROL for detergents used in power dishwashing machines); Hercules Inc. v. Nat’l Patent Dev. Corp., 187 USPQ 668 (TTAB 1975) ([HYDROLYN for synthetic resin is similar to HYDRON for hydrophilic gels); Gen. Elec. Co. v. Raychem Corp., 184 USPQ 766 (TTAB 1974) (FLAMTROL for insulated wire is similar to FLAMENOL for electric wires, cables and conductors); Dap, Inc. v. Duracite Mfg. Co., 157 USPQ 640 (TTAB 1968) (DURACITE for construction materials consisting of paneling material made of mixture of resinous and granular rock material is similar to DURATITE for putties, surfacers, glazing compounds and adhesives); Catalin Corp. of Am. v. Flavor Corp. of Am., 149 USPQ 701 (TTAB 1966) (CATALYSIN for antioxidant flavor and enzyme preservative used in the production of animal feeds is similar to CATALIN for a chemical agent used, inter alia, as an antioxidant and preservative in the manufacture of animal feed); Rohm & Haas Co. v. Synthetic Prot. Finishes Co., 148 USPQ 612 (TTAB 1966) (ACRYNOL for synthetic resin protective finishes is similar to ACRYSOL for a synthetic resin for use in forming a protective film or as a bonding agent on fabrics); Sterling Drug, Inc. v. Sun Chem. Corp., 142 USPQ 330 (TTAB 1964) (WARCOCIDE for industrial germicidal chemicals is similar to WARFICIDE for rodenticide). We disagree with Applicant’s contention that the Examining Attorney impermissibly dissected the marks and rearranged their letters to conjure up visual similarity.9 As noted above, we do not use a side-by-side, point-by-point, comparison when analyzing the similarity of the marks. 9 Applicant’s Brief, p. 7 (9 TTABVUE 8). Serial No. 87747508 - 14 - [I]n the normal environment of the marketplace where purchases are actually made, purchasers and prospective purchasers would not usually have the opportunity for a careful examination of these marks in minute detail. An individual relies on the recollection of the various marks that he has previously seen in the marketplace and, more frequently than not, in the case of letter design marks, such as we have before us, his 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 encompass him in his daily living experiences. Viewing the respective marks of applicant and opposer from this standpoint, it is apparent that there exist marked resemblances in the overall design format and especially in the commercial impression which they convey to customers. Winnebago Indus., 207 USPQ at 344. Likewise, in this case, NESSENCE and NESCENS share marked resemblances in appearance. Turning to the sound of the marks, based on standard English pronunciation, the marks sound similar. While we acknowledge that there is not necessarily one correct pronunciation for a mark, In re Lamsom Oil Co., 6 USPQ2d 1041, 1042, n.3 (TTAB 1987), Applicant’s mark NESSENCE will likely be pronounced NES-IN(T)S and Registrant’s mark NESCENS will likely be pronounced NES-SENS. The two pronunciations are similar. Applicant contends that its mark is pronounced as two words “N-ESSENCE” whereas Registrant’s mark is pronounced as one word with two syllables, “‘NES- CENS,’ where the ‘CENS’ portion is pronounced similarly to the word ‘lens.’” 10 However, while it is impossible to predict how the public will pronounce a particular 10 Applicant’s Brief, p. 8 (9 TTTBVUE 9). Serial No. 87747508 - 15 - mark, Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1404 (TTAB 2010), we nonetheless have suggested above more likely pronunciations based on standard English. We doubt that consumers will pronounce Applicant’s mark NESSENCE as two words “N-ESSENCE” because Applicant has applied to register one word NESSENCE, not two words (e.g., N ESSENCE or N-ESSENCE). Inasmuch as NESSENCE and NESCENS are fanciful terms, they do not appear to have meanings other than functioning as trademarks. However, because the marks are used on in part identical products, they engender similar commercial impressions. While Applicant agrees that Registrant’s mark NESCENS is a fanciful term with no apparent meaning, Applicant contends that its mark NESSENCE “is a play on Applicant’s company name, Nessgood, and the word ‘essence.’”11 We disagree. “It has long been held that in the absence of evidence establishing that purchasers would be aware of the term or terms from which the marks were derived, how the marks came to be adopted is immaterial to the issue whether confusion is likely from their contemporaneous use.” Hercules, Inc. v. Nat’l Starch & Chem. Corp., 223 USPQ at 1248. In this appeal, there is no direct evidence concerning whether purchasers would be likely to understand the marks’ different derivations. We find that the marks are similar in terms of their appearance, sound, meaning and commercial impression. 11 Id., p. 9 (9 TTABVUE 10). Serial No. 87747508 - 16 - VI. Conclusion Because the marks are similar, the goods are in part identical and we presume that the channels of trade and classes of consumers are the same, we find that Applicant’s mark NESSENCE for “Facial masks; Facial beauty masks; Body and beauty care cosmetics” is likely to cause confusion with the registered mark NESCENS for, inter alia, cosmetics and masks for cosmetic use for facial care. Decision: The refusal to register Applicant’s mark NESSENCE is affirmed.