Pacific Crest Industries, Inc.

Trademark Trial and Appeal Board

May 9, 2019

87450994 (T.T.A.B. May. 9, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: May 9, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Pacific Crest Industries, Inc.
_____

Serial No. 87450994
_____

Erik M. Pelton of Erik M. Pelton & Associates, PLLC
for Pacific Crest Industries, Inc.
Robert N. Guliano, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____

Before Heasley, Lynch, and Hudis,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Pacific Crest Industries, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark VERO (in standard characters) for “kitchen cabinets and custom
kitchen cabinets,” in International Class 20.1

1 Application Serial No. 87450994, filed on May 16, 2017, based on a bona fide intent to use
the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b). The
Application contains the following translation statement: “The English translation of VERO
in the mark is TRUTH.”

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system. Coming before the
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground of likelihood of
confusion with the registered mark VERO AIR (in standard characters) for goods
including, in pertinent part, “mirrored cabinets for bathrooms and washrooms; goods
of wood or wood substitute materials for bathrooms and washrooms, namely, curtain
rails, wall hooks; goods of plastics, namely, fittings for furniture, windows and doors
for bathrooms and washrooms; fittings, not of metal, for furniture and sanitary
installations in the nature of furniture for bathrooms and washrooms; wall hooks, not
of metal, for bathrooms and washrooms; towel dispensers, not of metal, fixed;
bathroom furniture; bathroom mirrors,” in International Class 20.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
I. Likelihood of Confusion
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in 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.,

designation TTABVUE is the docket entry number; and coming after this designation are the
page references, if applicable.
2 Registration No. 5248295, issued on the Principal Register on July 25, 2017. In his brief on
appeal, the Examining Attorney withdrew his refusal based on Registration No. 4998691. 11
TTABVUE 3.
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575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor that is relevant, and have treated any
other factors as neutral. See Zheng 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) (“Not all of the DuPont factors are relevant
to every case, and only factors of significance to the particular mark need be
considered.”)); 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.”). Varying weights may be
assigned to each DuPont factor depending on the evidence presented. See Citigroup
Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir.
2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the
various evidentiary factors may play more or less weighty roles in any particular
determination”). Two key considerations are the similarities between the marks and
the similarities between the goods. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002) (“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.’”)); 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
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cumulative effect of differences in the essential characteristics of the goods and
differences in the marks.”).
A. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “The marks
‘must be considered … in light of the fallibility of memory’ and ‘not on the basis of
side-by-side comparison.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,
1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). The proper focus is on the
recollection of the average consumer, who retains a general rather than specific
impression of the marks. In re FabFitFun, Inc., 127 USPQ2d 1670, 1675 (TTAB 2018).
Applicant contends that its applied-for “VERO mark differs in appearance and
sound from the cited VERO AIR” mark because “Applicant’s mark consists of a
singular term – VERO – whereas the cited mark[] … consist[s] of two distinct terms,
and thus Applicant’s mark is visually and phonetically shorter in length.”3 If the cited

3 Applicant’s brief, 9 TTABVUE 11.
Serial No. 87450994
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mark VERO AIR is not dissected, but considered in its entirety, as it must be,
Applicant argues, it differs significantly from VERO.
Applicant likens this case to In re Hearst Corp., 982 F.2d 493, 25 USPQ2d 1238,
1239 (Fed. Cir. 1992), in which the Federal Circuit found that VARGAS for calendars
was not confusingly similar to VARGA GIRL for calendars, as “[t]he appearance,
sound, sight, and commercial impression of VARGA GIRL derives significant
contribution from the component ‘girl.’”4
Similarly, in this case, Applicant argues, the two marks differ in connotation and
commercial impression: “The Italian term ‘VERO’ is translated as ‘true,’ ‘real,’ or
‘genuine.’ … Applicant’s VERO mark, therefore, conveys the Applicant’s custom
kitchen cabinets are real or genuine Italian products and/or manufactured from true
Italian material.” In contrast, Applicant contends, “[t]he term ‘AIR’ in VERO AIR is
defined as ‘the look, appearance, or bearing of a person [or thing] especially as
expressive of some personal quality or emotion.’ Hence, VERO AIR carries the
impression that the goods ‘combine the unmistakable character [or air] of the original
[genuine or true] with a new level of precision and perfect proportions.’”5 For these
reasons, Applicant contends, the marks are dissimilar.

4 Id. at 11-12.
5 Id. at 12, citing MERRIAM-WEBSTER DICTIONARY, Merriam-Webster.com 2/7/2018 “air”
definition 4c: “the look, appearance, or bearing of a person especially as expressive of some
personal quality of emotion: DEMEANOR • an air of dignity,” Feb. 18, 2018 Response to
Office Action at 23; “vero”: “true, real, genuine,” Cambridge Online Dictionary,
Dictionary.Cambridge.org/us/dictionary/Italian-English/vero 10/4/2018, online
advertisement of VERO AIR bathroom products: “Vero Air is a complete bathroom collection
that combines the unmistakeable character of the original with a new level of precision and
Serial No. 87450994
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We agree with the Examining Attorney, however, that the present case is
distinguishable from Hearst, and that the marks here are more similar than
dissimilar. In Hearst, the marks were VARGAS and VARGA GIRL; the first words in
the marks were similar but not identical. However, in this case, Applicant’s entire
mark, VERO, is identical to the first word in the registered mark VERO AIR.
“Marks have frequently been found to be similar where one mark incorporates the
entirety of another mark, as is the case here. Coca-Cola Bottling Co. v. Joseph E.
Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL
is similar to BENGAL LANCER); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ
155, 156 (TTAB 1982) (EBONY is similar to EBONY DRUM); In re S. Bend Toy Mfg.
Co., 218 USPQ 479, 480 (TTAB 1983) (LIL’ LADY BUG is similar to LITTLE LADY).”
TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1115 (TTAB 2019).
Further, the distinctive word VERO, which forms the entirety of the applied-for
mark, is placed prominently as the first word in the registered mark, where it is likely
to be noticed and recognized by consumers. See In re Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “[t]he identity of the marks’
two initial words is particularly significant because consumers typically notice those
words first”) (citing Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee en
1772, 73 USPQ2d at 1692 (finding similarity between VEUVE ROYALE and two
VEUVE CLICQUOT marks in part because VEUVE “remains a ‘prominent feature’

perfect proportions,” Duravit.us/products/all_series/vero_air.us 10/5/2018, Request for
Reconsideration of Oct. 9, 2018, Exhibits C and L, at 17, 55.
Serial No. 87450994
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as the first word in the mark and the first word to appear on the label”); Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992) (upon encountering the marks, consumers will first notice the identical
lead word)).
Even though marks must be considered in their entireties, “‘in articulating
reasons for reaching a conclusion on the issue of confusion, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties.’” In re Detroit Athletic Co., 128 USPQ2d at 1051 (quoting
In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)); accord
TiVo Brands v. Tivoli, 129 USPQ2d at 1116.
Applicant has not provided any evidence to demonstrate that consumers would
attach a different connotation or commercial impression to the identical word VERO
appearing in both marks. Applicant suggests, somewhat inconsistently, that the
Italian word “VERO” conveys the meaning of “true,” “real,” or “genuine,” if translated
into English, but also suggests that “[c]onsumers would accept Applicant’s mark at
face value because the term ‘VERO’ is prominent and sounds like an Italian word,
which is highly valued by consumers of Italian furniture and cabinetry” and that
“consumers would not likely stop and translate Applicant’s VERO mark into English
– even those consumers who speak Italian.”6 If particular consumers view VERO as
the Italian word for truth, while others view it merely as a coined term, the

6 Applicant’s brief, 9 TTABVUE 14-15.
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consumers’ perception of VERO would be the same in both marks. Thus, the
connotation and commercial impression of the word would be the same.
The inclusion of the word AIR in the cited registered mark does not suffice to
distinguish the marks. “[T]he presence of an additional term in the mark does not
necessarily eliminate the likelihood of confusion if some terms are identical.” In re
Mighty Leaf Tea, 94 USPQ2d at 1260; see China Healthways Inst., Inc. v. Wang, 491
F.3d 1337, 83 USPQ2d 1123, 1340 (Fed. Cir. 2007) (the shared word in CHI and CHI
PLUS is likely to cause confusion despite differences in the marks’ designs). See
generally TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1207.01(b)(iii)
(Oct. 2018) (“if the dominant portion of both marks is the same, then the marks may
be confusingly similar notwithstanding peripheral differences.”).
If anything, VERO is likely to be perceived as a shortened version or house mark
of which VERO AIR is a variation or product line. See Mighty Leaf Tea, 94 USPQ2d
at 1260 (“ML is likely to be perceived as a shortened version of ML MARK LEES
when used on the same or closely related skin care products.”); In re Bay State
Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (“[W]e also keep in mind the
penchant of consumers to shorten marks.”); In re Aquitaine Wine USA, LLC, 126
USPQ2d 1181, 1188 (TTAB 2018). “[C]areful purchasers who do notice the difference
in the marks will not necessarily conclude that there are different sources for the
goods, but will see the marks as variations of each other, pointing to a single source.”
In re Hitachi High-Techs. Corp., 109 USPQ2d 1769, 1774 (TTAB 2014); In re Toshiba
Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (holding VANTAGE TITAN for
Serial No. 87450994
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MRI diagnostic apparatus, and TITAN for medical ultrasound device, likely to cause
confusion, noting that the marks are more similar than they are different and that
the addition of applicant’s “product mark,” VANTAGE, to the registered mark would
not avoid confusion).
For these reasons, the marks are more similar than dissimilar, such that the first
DuPont factor weighs in favor of finding a likelihood of confusion.
Applicant maintains that differences in Applicant’s and Registrant’s identified
goods create sufficiently different commercial impressions, such that there is no
likelihood of confusion.7 For the following reasons, though, we find that their goods
are related.
B. Relatedness of the Goods, Channels of Trade, and Classes of Customers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital, 110
USPQ2d at 1161. A proper comparison of the goods “considers whether ‘the
consuming public may perceive [the respective goods or 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., 113 USPQ2d at 1086 (quoting Hewlett-Packard Co.

7 Applicant’s reply brief, 12 TTABVUE 7, citing, e.g., In re Sears, Roebuck & Co., 2 USPQ2d
1312, 1314 (TTAB 1987) (holding CROSS-OVER for bras and CROSSOVER for ladies’
sportswear not likely to cause confusion); In re British Bulldog, Ltd., 224 USPQ 854, 856
(TTAB 1984) (holding PLAYERS for men’s underwear and PLAYERS for shoes not likely to
cause confusion).
Serial No. 87450994
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v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)) quoted
in In re FabFitFun, Inc., 127 USPQ2d at 1672.
The relevant identified goods, once again, are “kitchen cabinets and custom
kitchen cabinets” in the Application and “mirrored cabinets for bathrooms and
washrooms; goods of wood or wood substitute materials for bathrooms and
washrooms, namely, curtain rails, wall hooks; goods of plastics, namely, fittings for
furniture, windows and doors for bathrooms and washrooms; fittings, not of metal,
for furniture and sanitary installations in the nature of furniture for bathrooms and
washrooms; wall hooks, not of metal, for bathrooms and washrooms; towel
dispensers, not of metal, fixed; bathroom furniture; bathroom mirrors” in the cited
Registration.
Applicant argues that “the VERO AIR goods are for use in bathrooms and
washrooms only, and therefore are different from Applicant’s goods, which are for use
in kitchens.”8 As such, it argues, each identification encompasses a particular
segment of the home furnishings industry; the products do not overlap, and have
completely distinct purposes and uses.9
Applicant also argues that its goods are “custom cabinetry items” that customers
purchase directly from the woodworker, whereas “[a] consumer would need to buy
VERO AIR as-is and can do so online, without any consultation or preparation. …
Thus, while the goods are all related to cabinets, they will be not be encountered by

8 Applicant’s brief, 9 TTABVUE 18.
9 Id.; Applicant’s reply brief, 12 TTABVUE 5.
Serial No. 87450994
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the same person in the same ways, and are not similar enough to create a likelihood
of confusion in the minds of the consumers.”10 Applicant’s kitchen cabinetry would
accordingly be displayed “in different departments and aisles of home improvement
stores,” and on different webpages than Registrant’s bathroom cabinets, Applicant
concludes.11
We are mindful, though, that the issue is not whether consumers would be likely
to confuse the goods, but rather whether they would be likely to be confused as to
their source. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000); In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB 2018). It is
not necessary that the respective products be similar or even competitive to support
a finding of likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229
F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). Instead, likelihood of confusion
can be found “if the respective products are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Likelihood of confusion must be determined based on an analysis of the goods
recited in the application vis-à-vis the goods identified in the cited Registration. See
Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161; Hewlett-Packard v. Packard

10 Applicant’s brief, 9 TTABVUE 17-18.
11 Id.; Applicant’s reply brief, 12 TTABVUE 6.
Serial No. 87450994
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Press, 62 USPQ2d at 1004; Octocom Sys., Inc. v. Houston Comp. Servs. Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In this case, Applicant’s identification
of goods is broadly worded to include “kitchen cabinets,” not just “custom kitchen
cabinets.”12 The Registration’s identification of goods includes ‘mirrored cabinets for
bathrooms and washrooms” and “bathroom furniture,” without indicating whether
they are “as-is,” “stock,” or custom made.
Unrestricted and broad identifications are presumed to encompass all goods of the
type described. Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re Solid State Design Inc., 125
USPQ2d 1409, 1413 (TTAB 2018). And “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.” In re Aquamar, Inc., 115
USPQ2d 1122, 1126, n.5 (TTAB 2015) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
Here, the Application and cited Registration both identify cabinets, which are a
type of furniture.13 The issue is whether the respective products―kitchen cabinets on
the one hand and bathroom cabinets and furniture on the other―are related in some
manner and/or if the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate from the same source. Coach

12 Examining Attorney’s brief, 11 TTABVUE 10.
13 “Cabinet”: “a piece of furniture with doors and shelves or drawers that is used for storing
things or for showing attractive objects.” MACMILLAN DICTIONARY at
MacmillanDictionary.com 10/23/2018, Oct. 23, 2018 Office Action at 10.
Serial No. 87450994
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Servs. v. Triumph Learning, 101 USPQ2d at 1722.
The Examining Attorney contends that:
The evidence of record repeatedly and unequivocally establishes that it is
common for bathroom furniture and kitchen cabinets to be offered in the
same trade channels, for bathroom furniture and kitchen cabinets to be
offered by the same manufacturers, for manufacturers of bathroom
furniture and kitchen cabinets to use the terms “kitchen” and “bath”
together to describe their goods, and for those manufacturers to offer the
same or similar furniture designs and materials in both bathrooms and
kitchens.14

In support of this contention, the Examining Attorney submitted excerpts from
seventeen sources offering cabinets for both kitchens and bathrooms under the same
marks, including:
• Wilco Cabinet Makers ― for kitchens and bathrooms.15
• FX Cabinets Warehouse ― for kitchens and bathrooms, design for both rooms
offered on same web page, and bathroom and kitchen cabinets offered under
the same marks such as Vanillaville, Coffeeville, and Century City.16
• Bischoff Cabinetmaking ― “While kitchens may be the backbone of Bischoff
Cabinetmaking, we also have extensive experience in libraries, bars,
bathrooms….”17
• Starmark Cabinetry ― “Hundreds of experienced StarMark Cabinetry dealers
and designers are located across the nation, ready to listen to you and create

14 Examining Attorney’s brief, 11 TTABVUE 7.
15 WilcoCabinets.com 10/23/2018, Oct. 23, 2018 Office Action at 11-13.
16 CabinetsWarehouse.com 10/23/2018, id. at 14-19.
17 BischoffCabinetmaking.com 10/23/2018, id. at 21.
Serial No. 87450994
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your dream kitchen and bath.”18
• Signature Custom Cabinetry ― “Kitchen” “Bath and Other Rooms” “Your
imagination and our cabinetry can bring every room to life.”19
• R.D. Henry & Co. ― “We make cabinets. You add life.” For kitchens and
bathrooms.20
• SOLLiD Cabinetry ― “Custom Kitchen Cabinets and Custom Bathroom
Vanities.”21
• MERIT Kitchens ― Cabinet Manufacturer, “Providing you impeccable and
affordable bathroom & kitchen cabinet solutions.”22
• WELLBORN Cabinet ― Cabinets for kitchen, bathroom, and bedroom.
“Wellborn Cabinet has options that allow you to create exactly what you want
in every room of your home.”23
• AC Advanced Cabinets Corp. ― “Custom & Semi-Custom Kitchen & Bath
Cabinets ― Featured” “Whether you’re building a new kitchen or bathroom or
upgrading your existing one, you’ll find a remarkable selection of kitchen and
bath cabinets, designs, finishes.”24

18 StarMarkCabinetry.com 10/23/2018, id. at 32.
19 SignatureCustomCabinetry.com 10/23/2018, id. at 25, 33.
20 RDHenry.com 10/23/2018, id. at 34-35.
21 SollidCabinetry.com 10/23/2018, id. at 40.
22 Merit-kitchens.com 10/23/2018, id. at 42.
23 Wellborn.com 10/23/2018, id. at 44.
24 AdvancedCabinetsCorp.com 10/23/2018, id. at 50.
Serial No. 87450994
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This marketplace evidence demonstrates that it is common for consumers to
encounter kitchen and bathroom cabinets offered under the same marks by a single
source, such that the goods are related. Evidence that “a single company sells the
goods and services of both parties, if presented, is relevant to the relatedness
analysis.” Hewlett-Packard v. Packard Press, 62 USPQ2d at 1004 quoted in In re
Integrated Embedded, 120 USPQ2d 1504, 1514-15 (TTAB 2016).
Because there are no limitations as to channels of trade or classes of purchasers
in the identification of goods in the Application and cited Registration, we presume
that Applicant’s and Registrant’s goods move in all channels of trade normal for such
goods and are available to all potential classes of ordinary consumers―in this case,
consumers of home furnishings, including the respective types of cabinets. See In re
i.am.symbolic, 123 USPQ2d at 1750. The above excerpts, augmented by over a dozen
other examples submitted by the Examining Attorney,25 show kitchen and bathroom
cabinets offered together, via the same or similar channels of trade. For example:
• FX Cabinets Warehouse
26

25 Examining Attorney’s brief, 11 TTABVUE 9-10.
26 CabinetsWarehouse.com, 10/23/2018, Oct. 23, 2018 Office Action at 17.
Serial No. 87450994
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• SOLLID Cabinetry
27
• MERIT Kitchens
28
• WELLBORN Cabinet
29
The record evidence consequently shows Applicant’s and Registrant’s types of
goods emanating from single sources and traveling through the same or overlapping
channels of trade to the same class of customers: ordinary consumers seeking home

27 SollidCabinetry.com 10/23/2018, id. at 39.
28 Merit-Kitchens.com 10/23/2018, id. at 43.
29 Wellborn.com 10/23/2018, id. at 44.
Serial No. 87450994
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furnishings.
The second and third DuPont factors thus weigh in favor of finding a likelihood of
confusion.
C. Care and Sophistication of Purchasers

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues that the high cost associated with its VERO custom cabinetry
will impel its customers to exercise greater care and sophistication in their purchases
than they would with respect to Registrant’s VERO AIR “stock” cabinetry.30 See
Electronic Design & Sales Inc. v. Electronic Data Sys. Corp., 954 F.2d 713, 21 USPQ2d
1388, 1392 (Fed. Cir. 1992) (“[T]here is always less likelihood of confusion where
goods are expensive and purchased after careful consideration.”).
However, we must focus on the identification of goods stated in the Application
and Registration, not on extrinsic evidence of the nature of the actual goods. See In
re Detroit Athletic Co., 128 USPQ2d at 1052 (citing In re i.am.symbolic, llc, 123
USPQ2d at 1749). The Application and Registration broadly identify kitchen and
bathroom cabinets and furniture, respectively, without restrictions as to quality of
workmanship or price. See In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018).
Nonetheless, the very nature of the cabinetry goods themselves may indicate that
they are somewhat expensive and intended for long-term use―facts that may impel

30 Applicant’s brief, 9 TTABVUE 18-20.
Serial No. 87450994
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purchasers to exercise appropriate care in their purchases. See In re I-Coat Co., 126
USPQ2d at 1739.
The fourth DuPont factor therefore weighs somewhat against likely confusion.

II. Conclusion

We have considered all of the arguments and evidence of record, and all relevant
DuPont factors. We have found that the marks at issue are similar; that Applicant’s
identified goods are related to Registrant’s goods; that the respective goods would
move in the same or overlapping trade channels; and that they are offered to the same
class of relevant purchasers, who cannot necessarily be expected to avoid confusion,
even if they exercise sophistication and care in their purchases. Any care in
purchasing is outweighed by the similar marks and related goods. See HRL Assocs.,
Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546,
14 USPQ2d 1840, 1841-42 (Fed. Cir. 1990) (similarities of goods and marks outweigh
sophisticated purchasers, careful purchasing decision, and expensive goods or
services).
Here, even if prospective consumers are careful, they could still infer from
Applicant’s and Registrant’s similar marks that the respective cabinetry goods
emanate from the same source, or from affiliated sources, as demonstrated by the
Examining Attorney’s third-party evidence. See In re Nat’l Novice Hockey League,
Inc., 222 USPQ 638, 641 n.7 (TTAB 1984). We therefore conclude that Applicant’s
applied-for mark, as used in connection with the goods identified in its Application,
Serial No. 87450994
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so resembles the cited registered mark as to be likely to cause confusion or mistake,
or to deceive under Trademark Act Section 2(d).
Decision: The refusal to register Applicant’s applied-for VERO mark in
Application Serial No. 87450994 is affirmed.