Ole Henriksen of Denmark, Inc.

Trademark Trial and Appeal Board

Jan 10, 2011

No. 77686786 (T.T.A.B. Jan. 10, 2011)

Mailed:
January 10, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ole Henriksen of Denmark, Inc.
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Serial No. 77686786
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Douglas H. Morseburg of Sheldon Mak Rose & Anderson PC for
Ole Henriksen of Denmark, Inc.

Andrea P. Butler, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney).
_______

Before Walters, Taylor and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Ole Henriksen of Denmark, Inc. (“applicant”) filed an
intent-to-use application for the mark FEEL THE DIFFERENCE,
in standard character form, for “non-medicated skin care
preparations, namely a facial mask for hydrating and
firming facial skin,” 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 mark FEEL THE
DIFFERENCE, in standard character form, for “nutritional
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77686786
2
supplements; dietary supplements; herbal supplements;
mineral supplements; multi-vitamins; vitamins; dietary and
herbal supplements; herbal and plant derived products,
namely herbal nutritional supplements; food supplements,
namely, anti-oxidants; homeopathic supplements; nutritional
drink mix for use as a meal replacement; nutritional food
bars for use as a meal replacement; nutritional meal
replacement powders,” in Class 5.1
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.
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

1 Registration No. 3360909, issued December 25, 2007. The
registration also includes mail order services and online retail
store services in the field of nutritional supplements, etc. in
Class 35.
Serial No. 77686786
3
differences in the essential characteristics of the goods
and differences in the marks”).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

The marks are identical.
B. The similarity or dissimilarity and nature of the
goods described in the application and registration,
the channels of trade and classes of consumers.

Non-medicated skin care preparations, namely a facial
mask for hydrating and firming facial skin2 and nutritional
supplements, etc. are clearly different products. However,
in the likelihood of confusion analysis, it is not
necessary that the respective goods be identical or
competitive, or even that they move in the same channels of
trade to support a holding of likelihood of confusion. It
is sufficient that the respective goods are related in some
manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could, because of the similarity of the
marks, give rise to the mistaken belief that they

2 Hydrating skin means maintaining or restoring the normal
proportion of fluid in the body. Webster’s Third New
International Dictionary (Unabridged), p, 1107 (1993). The Board
may take judicial notice of dictionary evidence. University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ
594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983).
Serial No. 77686786
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originated from the same producer. In re Melville Corp.,
18 USPQ2d 1386, 1388 (TTAB 1991).
Moreover, where as here, the marks are identical,
applicant’s goods and registrant’s goods do not have to be
as similar to support a finding of likelihood of confusion.
In re Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In
re Concordia International Forwarding Corp., 222 USPQ 355,
356 (TTAB 1983). In other words, even when the goods are
not intrinsically related, the use of identical marks can
lead to the assumption that there is a common source. In
re Shell Oil Co., 992 F.2d 1024, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993). As discussed below, in this case, the evidence
shows that the goods are, in fact, related.
The Examining Attorney has submitted numerous use-
based, third-party registrations for products listed in
both the application and registration at issue. Third-
party registrations which individually cover a number of
different services that are based on use in commerce may
have some probative value to the extent that they serve to
suggest that the listed services are of a type which may
emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky
Serial No. 77686786
5
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
The registrations listed below are representative.3
Mark Reg. No. Goods

EURO PHARMA 2800979 Dietary, herbal, mineral and
nutritional supplements; non-
medicated skin care preparations,
namely, skin lotions, emollients,
gels, moisturizers, toners, and
conditioners

DERMALOGICA 3466148 Non-medicated skin care
preparations, skin creams, skin
moisturizers, skin masques, skin
care lotions; dietary supplements

SUNMARK 2941616 Non-medicated skin care lotions,
creams and masks; vitamins,
minerals and dietary supplements

TEACEUTICALS 3199451 Skin care products, namely,
creams, oils, moisturizers, and
lotions; dietary supplements and
vitamins

FACELOGIC 3240521 Non-medicated skin care products,
namely, skin lotions, skin creams,
skin toners, skin masks, skin
cleansers and skin serums; dietary
health supplements and vitamin
supplements

The Examining Attorney also submitted the following
evidence to show that the goods in the application and
registration are related:

3 We have not included the entire description of goods for each
of the registrations. Only the goods in both applicant’s
application and registrant’s registration are listed.
Serial No. 77686786
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1. An excerpt from the Suite101.com website. This
appears to be a website providing information regarding,
inter alia, health and beauty. The excerpt submitted is a
February 3, 2009 article by Wei Yin Wong entitled
“Supplements for Skin: Skincare through Vitamins and
Minerals.” The subject of the article is that vitamin and
mineral supplements can help keep one’s skin healthy. The
website also provides links to other websites for skin care
products.
2. An excerpt from the LifeExtension website
(lef.org), self-professed authority on health and
nutrition.
Life extension is a global authority on
nutrition, health and wellness as well
as a provider of scientific information
on anti-aging supplements and
therapies. We supply only the highest
quality nutritional supplements,
including minerals, vitamins, herbs and
hormones.

In addition, LifeExtension provides skin care products for
use in conjunction with its dietary supplements.
3. An Ezine article by Jerrick Foo entitled “Anti-
Aging Skin Care Supplements” (Ezinesarticles.com). This
appears to be an “infomercial” type of communication to
promote Mr. Foo's skin care website. The subject of this
article is that people may rejuvenate their skin with
Serial No. 77686786
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“hydrating skin care products and anti-aging skin care
supplements.” The website also provides links to other
websites for skin care products.
4. An excerpt from the evitamins.com website
advertising the sale of vitamins designed as “Vitamin
Skincare Formulas.” The evitamins.com retailer also
advertises the sale of skin care facial moisturizers and
creams.
5. An excerpt from the target.com website
advertising a skin moisturizer containing “Vitamin C+.”
6. An article in Buzzle.com by Rebecca Prescott
entitled “Health And Beauty Products – Do Vitamin E Creams
Work?” The article analyzes whether vitamin E, a
purportedly popular ingredient in many skincare creams, is
effective.
7. An excerpt from the Answers.com website regarding
“Vitamin E skin cream, ointment, or gel.” This excerpt
discusses the effect of applying vitamin E to the skin
through creams, ointments and gels. At the end of the
discussion, the website includes links to skincare products
containing vitamin E.
8. An excerpt from the Avon.com website advertising
the sale of skincare products containing various vitamins
(e.g., vitamins A, B5, C, D and E).
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9. An excerpt from the MarioBadescu.com website
advertising the sale of a skin cream containing vitamins A
and E.
10. An excerpt from the Sephora.com website
advertising the sale of “skincare supplements” (i.e.,
dietary supplements) and face creams and moisturizers.
11. An excerpt from the Thisthatandeverything.com
website advertising the sale of skincare products and
vitamin supplements. The different products were
advertised together.
12. An excerpt from the Puritan.com website
advertising the sale skin care products and vitamin and
mineral supplements all under the PURITAN PRIDE trademark.
13. An excerpt from the Your-celluite-solution.com
website advertising the sale of MURAD skin creams and
supplements. The advertisement claims that the
“combination of supplements and topical cream will
encourage the appearance of firmer skin.”
14. An excerpt from the SkinCareRx.org website
entitled “Vitamins in Skin Care: How they Help.” The
excerpt discusses the role of vitamins in skin care. The
website includes links to other websites that appear to be
selling skin care products.
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15. An excerpt from the Bosciaskincare.com website
advertising the sale of BOSCIA supplements and skin care
masks.
16. An excerpt from the AromaBella.com website
advertising the sale of a skin care “masque” containing
vitamins and minerals.
17. An excerpt from the Zao.AnzaoHealth.com website
advertising the sale of ZAO brand skin care products and
dietary supplements.
18. An excerpt from the Jaliman.com website
advertising the sale of DEBRA JALIMAN M.D. brand dietary
supplements and skin care products, including a mask.
19. An excerpt from the Bindi.com website advertising
the sale of BINDI brand skin care products, including a
facial mask, and nutritional supplements.
The evidence shows that nutritional supplements,
vitamins and skin care products emanate from the same
sources, that nutritional supplements and vitamins are
ingredients in skin care products, that nutritional
supplements, vitamins, and skin care products may be used
together in a skin care regime, that nutritional
supplements, vitamins and skin care products are sold by
the same retailers to the same consumers.

Serial No. 77686786
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C. Balancing the factors.
In view of the identity of the marks, the relatedness
of the goods, and the similarity of the channels of trade
and the classes of consumers, we find that registration of
applicant’s mark FEEL THE DIFFERENCE for “non-medicated
skin care preparations, namely a facial mask for hydrating
and firming facial skin” so resembles the registered mark
FEEL THE DIFFERENCE for “nutritional supplements; dietary
supplements; herbal supplements; mineral supplements;
multi-vitamins; vitamins; dietary and herbal supplements;
herbal and plant derived products, namely herbal
nutritional supplements; food supplements, namely, anti-
oxidants; homeopathic supplements; nutritional drink mix
for use as a meal replacement; nutritional food bars for
use as a meal replacement; nutritional meal replacement
powders” as to be likely to cause confusion.
Decision: The refusal to register is affirmed.