Northeast Center for Beekeeping, LLC DBA Betterbeev.Brian Neidig

Trademark Trial and Appeal Board

May 19, 2017

No. 92063761 (T.T.A.B. May. 19, 2017)

WBC Mailed: May 19, 2017

Cancellation No. 92063761

Northeast Center for Beekeeping, LLC
DBA Betterbee

v.

Brian Neidig

Before Kuhlke, Wellington, and Greenbaum,
Administrative Trademark Judges.

By the Board:

Northeast Center for Beekeeping, LLC DBA Betterbee (“Petitioner”) seeks to
cancel Brian Neidig’s (“Respondent”) registration for BETTER BEE1 for “lip balms;
body lotions; soaps made of beeswax and honey” in International Class 3 on the basis
of priority and likelihood of confusion under Section 2(d). 1 TTABVUE. In support of
its petition to cancel, Petitioner asserts common law rights and ownership of a
registration for the mark BETTERBEE (Registration No. 3872142)2 for “candles” in
International Class 4, “agricultural pesticides” in International Class 5, “agricultural
machines, namely, extractors and separators, used in the processing of honey and

1 Registration No. 4650502 issued December 2, 2014 claiming a date of first use anywhere
and in commerce of September 1, 2014.
2 Issued on November 9, 2010, claiming dates of first use anywhere and in commerce of
September 1, 1979.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
This Decision is not a
Precedent of the TTAB
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wax” in International Class 7, “hand tools, namely, scrapers” in International Class
8, “beehives” in International Class 20, and “natural sweeteners, namely, molasses
and honey, honey-based products, namely, candy, comb honey, flavored honey, corn
syrup and molasses-based products, namely, crystalline molasses and dried
molasses” in International Class 30.
This case now comes before the Board on Petitioner’s motion for summary
judgment on the ground of likelihood of confusion. 9-10 TTABVUE. Respondent has
captioned his response to Petitioner’s motion for summary judgment as a combined
response and cross-motion for summary judgment. 17 TTABVUE. The motions are
fully briefed.3
A motion for summary judgment is a pretrial device intended to save the time and
expense of a full trial when the moving party is able to demonstrate, prior to trial,
that there is no genuine dispute of material fact, and that it is entitled to judgment

3 Respondent submitted his response to the motion for summary judgment and a separate
filing entitled as a cross-motion for summary judgment which the Board noted it would not
consider in its February 8, 2017 order. 12 TTABVUE; 15 TTABVUE; 16 TTABVUE.
Respondent then submitted a filing on February 18, 2017 captioned, “Response to Autondria
Minors [Petitioner’s counsel] Motion of Summary Judgement by Brian Neidig and Cross
Motion for Summary Judgement” (sic). 17 TTABVUE.
Although neither party has objected to the evidence submitted in connection with this
motion for summary judgment on the basis of lack of authentication, several of the documents
submitted are unauthenticated. See TBMP § 528.05 (Jan. 2017). The 2010 amendments to
Fed. R. Civ. P. 56(c)(2) allow a court to consider unauthenticated documents on summary
judgment, eliminating the unequivocal requirement that documents submitted in connection
with such a motion must be authenticated. Fed. R. Civ. P. 56(c)(2) (Advisory Committee
notes) (2010 amendment). Inasmuch as neither party has objected to the evidence submitted
in connection with the motion for summary judgment based on lack of authentication, we
have considered it.

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as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Opryland USA Inc. v. Great American Music Show Inc., 970 F.2d 847, 23
USPQ2d 1471 (Fed. Cir. 1992); and Sweats Fashions Inc. v. Pannill Knitting Co. Inc.,
833 F.2d 1560, 4 USPQ2d 1793 (Fed. Cir. 1987). If the moving party is able to meet
this initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of specific genuinely disputed facts that must be resolved at trial. The
nonmoving party may not rest on mere allegations or assertions but must designate
specific portions of the record or produce additional evidence showing the existence
of a genuine dispute of material fact for trial. Should the nonmoving party fail to raise
a genuine dispute of material fact as to an essential element of the moving party’s
case, judgment as a matter of law may be entered in the moving party’s favor. See
Fed. R. Civ. P. 56(a).
A factual dispute is genuine if, on the evidence of record, a reasonable fact finder
could resolve the matter in favor of the non-moving party. See Opryland USA Inc. v.
Great Am. Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992);
Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed.
Cir. 1992). Evidence on summary judgment must be viewed in the light most
favorable to the non-movant, and all justifiable inferences are to be drawn in the non-
movant’s favor. Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027,
2029 (Fed. Cir. 1993); Opryland USA, 23 USPQ2d at 1472. The Board may not resolve
genuine disputes as to material facts on summary judgment; it may only ascertain
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whether genuine disputes as to material facts exist. See Lloyd’s Food Prods., 25
USPQ2d at 2029; Olde Tyme Foods, 22 USPQ2d at 1542.
In order for Petitioner to prevail on its motion, it must establish that there is no
genuine dispute that it has standing to maintain the proceeding, that it has prior
proprietary rights in its pleaded mark, and that contemporaneous use of the parties’
respective marks on their respective goods and/or services would be likely to cause
confusion or mistake or to deceive consumers. See Hornblower & Weeks, Inc. v.
Hornblower & Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001).
Standing
Turning first to the question of standing, it is a threshold issue that must be
proven by a plaintiff in every inter partes case so as to prevent litigation when there
is no real controversy between the parties. See, e.g., Empresa Cubana Del Tabaco v.
Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014); Ritchie v. Simpson,
107 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Jewelers Vigilance Committee Inc.
v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021, 2023 (Fed. Cir. 1987); Lipton
Industries, Inc. v. Ralston Purina Company, 670 F.2d 1024, 213 USPQ 185 (CCPA
1982). To establish standing, the plaintiff must demonstrate that it has a “real
interest,” i.e., a direct and personal stake, in the outcome of the proceeding and a
reasonable basis for its belief of damage. Ritchie, 50 USPQ2d at 1025-26.
“Specifically, [a plaintiff] must show: (1) a ‘real interest’ in the proceeding; and (2) a
‘reasonable basis’ for believing that it would suffer damage if the mark is registered.
Under the ‘real interest’ requirement, [a plaintiff] must have ‘a legitimate personal
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interest in the opposition.’ With respect to the second inquiry, the [plaintiff’s] belief
of damage ‘must have a reasonable basis in fact.’” Coach Servs. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012) (citations omitted).
In its petition to cancel, Petitioner has alleged, in addition to its pleaded
registration, prior use of and goodwill in a mark similar to that of Respondent in
connection with related goods4 and damage resulting from Respondent’s use of his
mark. 1 TTABVUE 5-9. In support thereof, Petitioner has submitted a certified copy
of the pleaded registration file, including the assignment from Petitioner’s
predecessor, under the declarations of Christopher Cripps and Margaret Stevens. 9
TTABVUE 501, 511-16, Declaration of Christopher Cripps (“Cripps Declaration”) at
¶ 6, Exh. 1.; 10 TTABVUE 2, 25-30, Declaration of Margaret Stevens (“Stevens
Declaration”) at ¶ 3, Exh. 1. In addition, as to Petitioner’s assertion of common law
rights, Petitioner has submitted a declaration attesting to use of the mark in
connection with various goods and provided evidence in the form of catalog and
website pages. 9 TTABVUE 500-623, Cripps Declaration at ¶¶ 45, 49-52, 61-76, Exhs.
8 and 10-14. The registration and the averments with supporting evidence are
sufficient to demonstrate a reasonable basis for Petitioner’s belief of damage. See
Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (finding
standing based on common law use). Further, as Respondent has not otherwise

4 Petitioner asserts use on “goods such as natural beeswax moisturizing skin cream, honey
foaming hand soap, beginner’s deluxe soap making kits, beginner’s candle making kits, and
original honey gift baskets, containing honey soap, hand cream, beeswax votives, and honey
candy” since at least as early as 2004. 1 TTABVUE 9.
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disputed Petitioner’s standing, we find no genuine dispute of material fact concerning
Petitioner’s standing to bring this cancellation proceeding. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries,
Inc., 213 USPQ at 189.
Priority
“In a cancellation proceeding, petitioner does not … have priority simply because
it owns a registration.” Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89
USPQ2d 1844, 1851 (TTAB 2008) (citing Brewski Beer Co. v. Brewski Brothers, Inc.,
47 USPQ2d 1281, 1284 (TTAB 1998).
For purposes of priority, the parties may rely on the filing dates of the underlying
applications for their respective registrations. The earliest date upon which
Respondent may rely is March 6, 2014, the filing date for the underlying application
of the subject registration. There is no evidence on the record which supports, and
Respondent does not assert, an earlier use date. The filing date for the underlying
application of Petitioner’s pleaded and proven registration is September 16, 2009. In
view thereof, Petitioner has established priority as to the goods in the registration.
Furthermore, Respondent does not dispute Petitioner’s priority and therefore, the
Board finds Petitioner has adequately established its priority in the mark
BETTERBEE as to the goods listed in its registration.5 We find that there is no
genuine dispute as to Petitioner’s priority over Respondent.

5 We note that the record contains evidence of use of the mark in connection with soaps,
candle-making supplies and soap-making supplies in addition to Petitioner’s registered goods
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Likelihood of Confusion
We determine the question of likelihood of confusion based on the factors set forth
in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567
(CCPA 1973). We consider all du Pont factors for which there is evidence of record
but “may focus ... on dispositive factors, such as similarity of the marks and
relatedness of the goods.” Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 57
USPQ2d 1557, 1559 (Fed. Cir. 2001); see Mattel Inc. v. Funline Merchandise Co., 81
USPQ2d 1372, 1374 (TTAB 2006).
Similarity of Marks
Turning to the marks, we consider Respondent’s mark BETTER BEE and
Petitioner’s mark BETTERBEE and compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). The marks “‘must
be considered … in light of the fallibility of memory ….’” St. Helena Hosp., 113
USPQ2d at 1085 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components
Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). The proper focus is on the recollection
of the average customer, who retains a general rather than specific impression of the
marks. 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).

honey, candles and beekeeping supplies; however, for purposes of this motion we restrict our
determination to the goods identified in the unrestricted registration.
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The marks are identical except for the fact that Respondent’s mark includes
a space while Petitioner’s mark is spelled as one word. The absence of the space does
not significantly change the appearance of the marks. Stockpot, Inc. v. Stock Pot
Restaurant, Inc., 220 USPQ 52, 54 (TTAB 1983), aff'd, 737 F.2d 1576, 222 USPQ 665
(Fed. Cir. 1984) (“There is no question that the marks of the parties [STOCKPOT and
STOCK POT] are confusingly similar. The word marks are phonetically identical and
visually almost identical”); In re Best Western Family Steak House, Inc., 222 USPQ
827, 827 (TTAB 1984) (“There can be little doubt that the marks [BEEFMASTER and
BEEF MASTER] are practically identical”). In addition, the marks would be
pronounced identically, and their meanings and commercial impressions would be
virtually the same, if not identical. The near-identical nature of the marks is a
significant factor in the likelihood of confusion analysis. In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“Without a doubt the word portion of
the two marks are identical, have the same connotation, and give the same
commercial impression. The identity of the words, connotation, and commercial
impression weighs heavily against the applicant”). Respondent argues that its mark,
appearing as two separate words – BETTER and BEE – uses BETTER as an adjective
of BEE whereas Petitioner’s mark, appearing as one word – BETTERBEE – is a “play
on words.” 17 TTABVUE 3. The Board is not persuaded by this line of argument. The
absence of the space does not remove or add distinguishable connotations. With or
without the space the marks share all possible connotations.
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Respondent also asserts that his BETTER BEE mark “only appears with our logo
(a vintage bee) in between the words ‘Better’ and ‘Bee.’” 17 TTABVUE 3. We make
our determination on the applied-for mark, which does not include a logo. In fact,
Respondent’s mark is registered in standard character form and is not limited to a
particular manner of display. Therefore, Respondent is not limited to use of BETTER
BEE with any logo or design. Petitioner’s mark is also registered in standard
character form and we must consider Petitioner’s and Respondent’s marks
“regardless of font style, size, or color,” Citigroup Inc. v. Capital City Bank Group Inc.,
98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011), including uses that may emphasize the
separate words in Petitioner’s mark, e.g., BetterBee. See Phillips Petroleum Co. v.
C.J. Webb, Inc., 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971).
In view of the foregoing, the Board finds that there is no genuine dispute regarding
the similarity in the parties’ marks.
The Board now turns to the similarity in the parties’ goods.
Similarity of Goods/Channels of Trade/Classes of Customers
With regard to the goods, channels of trade and classes of consumers, we must
make our determinations under these factors based on the goods as they are
identified in the registrations. See Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co.
v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys.,
Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). “This factor considers whether ‘the consuming public may perceive [the
Cancellation No. 92063761
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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) (quoting Hewlett Packard, 62 USPQ2d
at 1004). In a Section 2(d) determination, the goods and/or services do not have to be
identical or even competitive in order to find that there is a likelihood of confusion.
In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); In re G.B.I. Tile & Stone,
Inc., 92 USPQ2d 1366, 1368 (TTAB 2009). We must consider not whether the actual
goods are literally the same, but rather whether the public will be confused as to their
source. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000); In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993); Safety-Kleen Corp. v. Dresser Indus., Inc., 518 F.2d 1399, 1403–04, 186
USPQ 476, 480 (C.C.P.A. 1975); In re Ass’n of the U.S. Army, 85 USPQ2d 1264, 1270
(TTAB 2007). See also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984) (holding MARTIN’S for wheat bran and honey bread,
and MARTIN’S for cheese, likely to cause confusion).
Petitioner asserts that, as to the goods listed in the parties’ respective
registrations, “soaps and candles are the type of goods that emanate from a single
source,” and that “Petitioner’s candles, honey and flavored honey … and Respondent’s
lip balms, body lotions, soaps made of beeswax and honey … are the type that
emanate from the same source.” 9 TTABVUE 15-16. In support thereof, Petitioner
provides copies of third-party website printouts advertising or offering for sale
candles and honey with lotions, soaps or lip balms. 9 TTABVUE 34, 171-320, 494-
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499, Autondria Minor Declaration at ¶ 44, Exhs. 43-51 and 62. A few examples
regarding third party websites featuring goods such as candles and honey with body
lotions and soaps are reproduced below:
• Exhibit 43 – beecharmerhoney.com

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• Exhibit 45 – lakethompsonhoney.com
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• Exhibit 46 – bluehavenbee.com

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• Exhibit 47 – billsbees.com
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• Exhibit 49 – carolinahoneybees.com

In addition, Petitioner submitted third-party registrations covering goods such as
soaps, lip balms and lotions with candles and honey, including:
• BEE CHARMER, Registration No. 4866497 for a variety of goods including
“hand soap, hand lotion, hand cream, body soap, body lotion, body cream, lip
balm” and “candles” and “honey”;
• BEE INSPIRED, Registration No. 4841289 for a variety of goods including “bar
soap, body butter, body lotions, lip balm” and “candles” and “honey”;
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• BLUE HAVEN BEE COMPANY, Registration No. 4719533 for a variety of
goods including “body and cuticle creams, lip balms, and soaps” and “honey”;
• BURT’S BEES, Registration No. 4273260 for a variety of goods including
“creams, soaps, moisturizers, lotions, lip balms” and Registration No. 4728952
for “candles”;
• HYPSY GYPSY, Registration No. 4845172 for a variety of goods including
“body lotion, non-medicated lip balm, soap, bath soaps in liquid, solid or gel
form” and “candles, scented candles”;
• SOAP & WICK, Registration No. 4340266 for “bar soap” and “candles”;
• KAT BURKI, Registration No. 4673966 for a variety of goods including
“personal care products, namely, body creams, body lotions, body butters, body
soaps” and “candles”;
• BLENDING BABIES, Registration No. 4769872 for a variety of goods
including “bar soap, bath soaps, hand lotions, skin creams, skin lotions” and
“candles”;
• BLÖKE, Registration No. 4692017 for a variety of goods including “bath cream,
bath lotion, bath soaps in liquid, solid or gel form, moisturizing creams, creams
for cosmetic purposes” and “candles, perfumed candles, scented candles”;
• AROMAOLOGY, Registration No. 4592648 for a variety of goods including
“body lotion, non-medicated lip balm, soap, bar soap, bath soaps, beauty soap,
body cream soap, body lotion” and “aromatherapy fragrance candles, candles,
scented candles”;
• THE SOIL AND THE SEA, Registration No. 4947521 for a variety of goods
including “bar soap, face and body lotions, lip balm” and “candles”;
• VERA BRADLEY, Registration No. 4947773 for a variety of goods including
“skin lotion, body lotion, hand lotion, bath and hand soaps in liquid, solid or
gel form, body wash, hand cream” and “candles, scented candles”;
• SOULFUL, Registration No. 4639489 for a variety of goods including “soaps,
hair lotions” and “insect and plant based wax candles”; and
• MILLER ET BERTAUX, Registration No. 4825648 for a variety of goods
including “soaps, cosmetics body creams” and “candles, scented candles.”

See 9 TTABVUE 15, 38-170, Minor Declaration, Exhs. 1-42.
It is sufficient for purposes of likelihood of confusion that the parties’ respective
goods be related in some manner 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 similarities in the marks, give rise to the mistaken belief
that they emanate from or are in some way associated with the same source. Coach
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Servs., Inc. v. Triumph Learning LLC, 6101 USPQ2d at 1722 (quoting 7-Eleven Inc.
v. Wechler, USPQ 1715, 1724 (TTAB 2007)). Further, “[t]hird-party registrations
which individually cover a number of different goods and services that are based on
use in commerce may have some probative value to the extent that they serve to
suggest that the listed goods and services are of a type which may emanate from the
same source.” In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1091-92 (TTAB 2016) (citing
In re Albert Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)). Here, Petitioner has submitted
numerous third-party registrations which indicate that goods such as soaps, lotions
and lip balms are of the type that may emanate from the same source that provides
candles or honey.
The evidence of record persuades us that Respondent’s lotions, soaps and lip balms
and Petitioner’s candles and honey, broadly identified without restriction as to type
or channels of trade in their respective registrations, are related. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986 (CCPA 1981) (it is
sufficient to find likelihood of confusion as to the entire class if likelihood of confusion
is found with respect to use of the mark on any item in a class that comes within the
description of goods); see also Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734,
1745 (TTAB 2014); Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844,
1847 n.9 (TTAB 2004).
In addition, the record clearly shows that the ordinary channels of trade for soaps,
candles and honey include at the very least, specialty online retailers, and that these
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goods are sold on the same website, and in some cases on the same web page, of these
online retailers. In view thereof the channels of trade overlap. See In re i.am.symbolic,
llc, 116 USPQ2d 1406, 1412 (TTAB 2015); Albert Trostel & Sons Co., 29 USPQ2d at
1785.
Respondent contends that Petitioner “sells supplies to beekeepers,” is “barely
engaged in the cosmetic side of the business” and is essentially, a private label
business; whereas Respondent “wholesales cosmetics to specialty retailers” and
“makes cosmetics.” 17 TTABVUE 3, 6; 19 TTABVUE 6-7. Respondent further
contends that he sells “43 products … all of which fall into 12 categories lip balm,
soap, lotion, body butter, lotion bars, oils, shower gels, salves, bath salts, castile soap,
spray, and scrubs”; and that Petitioner, “in 2014 sold only 10 products” and “in 2017
sold only 12 products … which fall into 3 categories lip balm, soap, and cream.” 17
TTABVUE 3, 5.
Since there is no limitation in either party’s registration as to the goods’ nature,
type, channels of trade, or class of purchasers, it is presumed that the registrations
encompass all goods of the type described, that they move in all normal channels of
trade for such goods, and that they are available to all classes of purchasers of such
goods. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
1367, 1373, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013). In view thereof, Respondent’s
arguments regarding actual channels of trade are not persuasive. Respondent may
not limit the scope of Petitioner’s registration absent a counterclaim.

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In view of the above, there is no genuine dispute as to a similarity in the parties’
goods, channels of trade or customers based on the registrations.
Customer Confusion
Both parties have also argued that there have been instances of actual confusion.
In response to Petitioner’s interrogatory no. 5, Respondent admits that there have
been two instances of confusion. 9 TTABVUE 387, Minor Declaration, Exh. 56.
Respondent also argues that “in our nearly three years in business our names were
confused twice.” 17 TTABVUE 3. Petitioner argues that there have been at least four
additional instances of actual confusion and includes copies of emails regarding the
same. 9 TTABVUE 20, 607-621; see Edom Laboratories Inc. v. Lichter, 102 USPQ2d
1546, 1552 (TTAB 2012); Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340, 346 (TTAB
1983). Petitioner asserts that because of the “short period of time” the parties have
co-existed, this factor weighs in favor of a finding of likelihood of confusion. 9
TTABVUE 28.
Depending on the circumstances surrounding an incident of confusion, a single
incident of actual confusion may be enough to establish a likelihood of confusion
among consumers. Varitronics Sys., Inc. v. Merlin Equip., Inc., 682 F.Supp. 1203, 6
USPQ2d 1789, 1793 (S.D. Fla. 1988). However, evidence of a small number of
instances of actual confusion can also be dismissed as inconsequential; likelihood of
confusion must be shown by more than a few misdirected inquiries. See 4 McCarthy
on Trademarks and Unfair Competition § 23:14 (4th ed. June 2017 update). Where
evidence of actual confusion exists, the weight to which such evidence is entitled
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depends on the type and amount of confusion that occurs. See Therma-Scan, Inc. v.
Thermoscan, Inc., 295 F.3d 623, 63 USPQ2d 1659, 1665 (6th Cir. 2002). A handful of
misdirected emails may be dismissed as insignificant when the company is engaged
in a large volume of transactions and communications; there is the possibility that
emails are misdirected by people due to inattention or carelessness, as opposed to
actual confusion. See id.; S.C. Johnson & Son, Inc. v. Johnson, 266 F.2d 129, 121
USPQ 63, 72 (6th Cir. 1959). In addition to being few in number, they are of limited
probative value inasmuch as, rather than being from customers, most of the emails
appear to be from other companies offering services to Respondent, e.g., marketing,
label makers etc. See 9 TTABVUE 607-21, Cripps Declaration, Exhs. 15-18.
Although we find a genuine dispute of material fact remains as to the relevance
and probative value of the instances of actual confusion, this does not prevent us from
granting summary judgment in favor of Petitioner. It is well settled that the relevant
test is likelihood of confusion, not actual confusion; thus, it is unnecessary to show
actual confusion to establish likelihood of confusion. Herbko Int’l, Inc. v. Kappa Books,
Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002).
Other Factors
The record contains no evidence or arguments regarding a genuine dispute of
material fact as to any other factors bearing on the issue of likelihood of confusion, as
set forth in du Pont.
Conclusion
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In view of the evidence of record, we find that Petitioner is entitled, as a matter of
law, to a judgment in its favor as to its claim of priority and likelihood of confusion.
Petitioner has established its priority and likelihood of confusion between the parties’
marks and as to the parties’ respective registered goods, particularly as to Petitioner’s
candles and honey and Respondent’s lotions, soaps and lip balms. Where priority and
likelihood of confusion are established as to a particular good in a class, then the
petition must be granted as to the entire class.
Accordingly, Petitioner’s motion for summary judgment is hereby GRANTED and
judgment is entered against Respondent on the ground of priority and likelihood of
confusion. Registration No. 4233433 will be cancelled in due course.
In view thereof, Respondent’s cross-motion for summary judgment is moot.6

6 We also note that although titled as a cross-motion for summary judgment, Respondent’s
filing does not seek judgment in his favor. 17 TTABVUE; 19 TTABVUE.