Sjovik Limited

Trademark Trial and Appeal Board

Jan 5, 2018

No. 86807019 (T.T.A.B. Jan. 5, 2018)

This Opinion is Not a
Precedent of the TTAB

Hearing: November 14, 2017 Mailed: January 5, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Sjovik Limited
_____
Serial No. 86807019
_____
Wendi E. Sloane and Thomas M. Gniot
of Barack Ferrazzano Kirschbaum & Nagelberg LLP
for Sjovik Limited.

Tiffany Y. Chiang, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____
Before Zervas, Heasley, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
Sjovik Limited (“Applicant”) seeks registration on the Principal Register of the
mark for:
Bath salts; body sprays; bubble bath; compacts containing make-up;
cosmetics; eau de toilette; face and body glitter; make-up remover; make-up
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sets; nail enamel; nail polish; nail polish remover; nail varnish; non-
medicated skin care preparations; perfumes in International Class 3; and

On-line retail store services featuring bath salts, body sprays, bubble bath,
compacts containing make-up, cosmetics, eau de toilette, face and body
glitter, make-up sets, make-up remover, nail enamel, nail polish, nail polish
remover, nail varnish, non-medicated skin care preparations, perfumes;
retail store services featuring bath salts, body sprays, bubble bath,
compacts containing make-up, cosmetics, eau de toilette, face and body
glitter, make-up sets, make-up remover, nail enamel, nail polish, nail polish
remover, nail varnish, non-medicated skin care preparations, perfumes in
International Class 35.1

The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following
registered marks owned by the same entity:
HELP for “Hair shampoo” in U.S. Class 52;2 and
HELP HAIR for “Hair care preparations” in International Class 3 and
“Dietary supplements” in International Class 5.3

1 Application Serial No. 86807019 was filed November 2, 2015 based on a declared intent to
use under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). The description of the mark
states: “The mark consists of a stylized ‘HELP’ above ‘COSMETICS’, where the letter ‘H’ has
a lighter shading on the left half of the letter to create the shape of a cross, which overlaps
an additional shaded cross appearing to the left of the letter.”
2 Registration No. 0872322 issued July 1, 1969, twice renewed. The mark is a typed drawing,
the predecessor and legal equivalent of a standard-character drawing. See Oakville Hills
Cellar, Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 119 USPQ2d 1286, 1287 (Fed. Cir.
2016); TMEP § 807.03 (Oct. 2017). With regard to the identified U.S. Class, TMEP § 1401.02
provides, “[t]he prior United States classification continues to govern for all statutory
purposes for trademark applications filed on or before August 31, 1973, and all registrations
issued on the basis of an application filed on or before August 31, 1973, unless the owner of
the registration amends the registration to adopt international classification. 37 C.F.R.
§2.85(b).” The goods now would be classified in International Class 3.
3 Registration No. 3900558 issued January 4, 2011, and a combined Section 8 & 15 affidavit
has been accepted and acknowledged by the USPTO. The mark is in standard characters.
The registration includes a disclaimer of HAIR.
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After the Examining Attorney made the refusal final, Applicant requested
reconsideration and appealed. On remand granted by the Board, the Examining
Attorney denied the request for reconsideration, and this appeal then resumed. An
oral hearing took place on November 14, 2017. For the reasons set out below, we
affirm the refusal.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 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 relatedness of the goods and services. See In re Chatam Int’l Inc.,
380 F.3d 1340, 71 USPQ2d 1944 (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 services] and differences in the marks.”). Also, “it is
sufficient for finding a likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods [and services] within a particular
class in the application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB
2015); see also Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981).
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A. Number and Nature of Similar Marks for Similar Goods
Because the strength of the cited marks under the sixth du Pont factor helps
inform our comparison of the marks, we first address Applicant’s claim under this
factor that the cited registrations deserve a narrow scope of protection in view of
“their co-existence with other ‘HELP’- formative composite marks used for identical
products (hair care) as well as for other goods in Class 3.”4 The Federal Circuit has
held that evidence of extensive registration and use of a term by others in the same
industry can be powerful evidence of the term’s weakness. Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Use evidence may reflect commercial
weakness, while third-party registration evidence that does not equate to proof of
third-party use may bear on conceptual weakness if a term is commonly registered
for similar goods or services. See Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189
USPQ 693, 694-95 (CCPA 1976) (even if “there is no evidence of actual use” of third-
party registrations, such registrations “may be given some weight to show the
meaning of a mark in the same way that dictionaries are used”).
As an initial matter, Applicant did not provide any third-party evidence of actual
use of the same or similar marks to show commercial weakness, and instead relies
exclusively on third-party registration and application evidence. Applicant
emphasizes one registration and one “allowed application” for hair care preparations

4 7 TTABVUE 11 (Applicant’s Appeal Brief).
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for the marks SELF HELP and KELP HELP (with KELP disclaimed). According to
Applicant, if these marks can coexist with the cited registrations, then the
registration of its mark also should be permitted.5 We note that SELF HELP is a
phrase that has its own meaning, “the action or process of bettering oneself or
overcoming one’s problems without the aid of others; especially: the coping with one’s
personal or emotional problems without professional help.”6 Thus, while SELF HELP
includes the word HELP, we find that it has a distinct meaning and commercial
impression from HELP alone or combined with a generic or descriptive word. The
intent-to-use application for KELP HELP has little probative value, as “[i]ntroduction
of the record of a pending application is competent to prove only the filing thereof.”
Olin Corp. v. Hydrotreat, Inc., 210 USPQ 63, 65 n.5 (TTAB 1981).
Applicant also points to 13 other registrations of 12 marks that include HELP
along with other matter for goods in International Class 3:7

5 10 TTABVUE 6 (Applicant’s Reply Brief).
6 We take judicial notice of the Merriam-Webster dictionary entry for “self-help,” accessed
December 22, 2017 at merriam-webster.com. See Univ. of Norte Dame du Lac v. J.C. Gourmet
Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
7 TSDR August 23, 2016 Response to Office Action at 13-43. The records show 11 different
owners of the 13 registrations. We note that the table in Applicant’s Brief only sets out the
literal portion of these marks without showing or indicating the stylization and design
elements in the marks.
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, THX 4 UR HELP, HELP ME RHONDA,
HERE TO HELP, , , HELP ME, ,
SINUS HELP, EXTRA-HELP, and . Because the record lacks third-party
use evidence, Applicant has not demonstrated that the cited marks are commercially
weak. See Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d 1881, 1898-99 (TTAB
2006) (“In determining the strength of a mark we consider both its inherent strength
based on the nature of the mark itself and its market strength”).
With regard to conceptual weakness, we consider the third-party registration
evidence and find that in these marks, HELP is part of a broader phrase with a
distinct meaning and impression, often relating to the specific purpose of the goods,
such as helping reduce shaving irritation, helping stop pimples, and helping prevent
chapped hands. We also note that the third-party evidence here appears less
voluminous than that in Juice Generation, which addressed at least 26 uses or
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registrations of the same phrase for restaurant services.8 Juice Generation, 115
USPQ2d at 1675. Overall, taking into account the volume and nature of the evidence,
and using this third-party registration evidence in the manner of a dictionary,
Tektronix, 189 USPQ at 694-95, it shows that HELP has a suggestive meaning in the
context of the relevant goods. We find that Applicant has demonstrated some degree
of conceptual weakness of the term HELP in the context of registrant’s goods.9
B. Similarity of the Marks
We compare the applied-for and cited marks “in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay Imps., 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 test assesses not whether
the marks can be distinguished in a side-by-side comparison, but rather whether
their overall commercial impressions are so similar that confusion as to the source of
the goods and services offered under the respective marks is likely to result. Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).

8 Neither the Court nor the Board in Jack Wolfskin provided a number of registrations or
uses under consideration, though the Court referred to the evidence as “voluminous.” Jack
Wolfskin, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015).
9 Even were we to consider Applicant’s arguments that the third-party marks prove that
“consumers look[] to other elements to distinguish” among HELP-formative marks,
Registrant’s marks consist of or feature HELP!/HELP as the primary source-indicating
component without other significant elements, whereas all these third-party marks contain
additional matter that tends to be rather significant.
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The cited marks are in standard characters – HELP and HELP HAIR, while
Applicant’s mark is . The word HELP, which forms the entirety of
one cited mark and the dominant portion of the other, is identical to the dominant
word in Applicant’s mark.10 As the first word in Applicant’s mark, we find that HELP!
“is most likely to be impressed upon the mind of a purchaser and remembered.” Presto
Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988).
COSMETICS, the second word in Applicant’s mark, and HAIR, the second word in
one of the cited marks, are both disclaimed as generic or descriptive, diminishing
their significance in the comparison of marks.11 See In re Dixie Rests., Inc., 105 F.3d
1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Nat’l Data Corp., 753
F.2d 1056, 1060, 224 USPQ 749, 752 (Fed. Cir. 1985). While as Applicant notes, “the
public is generally not aware of disclaimers,”12 it is the descriptive or generic nature
of the terms that renders them less important in the comparison of marks because
consumers would be unlikely to focus on them to distinguish source. Id.
The shared word HELP creates a significant visual resemblance between the two
cited marks and Applicant’s mark, especially considering that the cited standard-
character marks could appear in the same font used in Applicant’s stylized wording.

10 As noted earlier in this opinion, the description of the mark states: “The mark consists of
a stylized ‘HELP’ above ‘COSMETICS’, where the letter ‘H’ has a lighter shading on the left
half of the letter to create the shape of a cross, which overlaps an additional shaded cross
appearing to the left of the letter.”
11 Applicant’s identification of goods includes cosmetics and the identification in the HELP
HAIR registration includes “hair care preparations”.
12 7 TTABVUE 8 (Applicant’s Brief).
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See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012)
(holding that the specific font style of a mark cannot serve as the basis to distinguish
it from a mark in standard character form). In Applicant’s mark, to the extent the
shadowing of the H in HELP! creates a cross design, the design is minimal and adds
little to the impression of the mark. Also, “[t]his case is, … like ‘most cases[,] where
the addition of an exclamation point does not affect the commercial impression of a
mark.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014)
(citation omitted); see also TMEP § 807.14(c) (Oct. 2017) (“Punctuation, such as
quotation marks, hyphens, periods, commas, and exclamation marks, generally does
not significantly alter the commercial impression of the mark.”). The shared word
HELP also renders the marks phonetically similar, an important consideration in the
analysis, because consumers would use HELP in all three marks to “call for” the goods
and services. See Viterra, 101 USPQ2d at 1911.
We further find the connotation and commercial impression of the marks to be
very close. In Applicant’s mark, COSMETICS would be understood as a reference to
the goods and type of services, and does not contribute significantly to the overall
commercial impression of the mark. Its inclusion in the mark does not alter the
meaning of HELP!. Cf. Lever Bros. Co. v. The Barcolene Co., 463 F.2d 1107, 174 USPQ
392 (CCPA 1972) (additional word CLEAR in ALL CLEAR changes the meaning of
the single word ALL); see also In re P. Ferrero & C.S.p.A., 479 F.2d 1395, 178 USPQ
167 (CCPA 1973) (TIC TAC TOE creates a different impression than TIC TAC).
Similarly, in the cited HELP HAIR mark, consumers would view HAIR as merely
Serial No. 86807019
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descriptive of the goods, and its addition does not change the meaning of HELP or
create a different overall impression. Rather, in terms of the meaning and commercial
impression of the marks, HELP/HELP! stands out, thereby increasing the similarity
of the marks.
Given the resemblance in sound, appearance, connotation and commercial
impression, we find Applicant’s mark very similar to the two cited marks, and the du
Pont factor regarding the similarity of the marks weighs in favor of a likelihood of
confusion.
C. The Goods and Services and Trade Channels
We next address the second and third du Pont factors, the relatedness of the goods
and services, and the channels of trade and classes of customers.
1. Relatedness of the Goods and Services
The test is not whether consumers would be likely to confuse the goods and
services, but rather whether they would be likely to be confused as to their source.
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). Therefore, to support a finding
of likelihood of confusion, the goods and services need not be identical or even
competitive. “Rather, it is sufficient that the goods [and services] are related in some
manner, or that the circumstances surrounding their marketing are such, that they
would be encountered by the same persons in situations that would give rise, because
of the marks, to a mistaken belief that they originate from the same source or there
is an association or connection between the sources of the goods [and services].” In re
Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). We must focus on the goods and
Serial No. 86807019
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services as identified in the application and the registrations, not on extrinsic
evidence of actual use. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The subject application identifies:
Bath salts; Body sprays; Bubble bath; Compacts containing make-up;
Cosmetics; Eau de toilette; Face and body glitter; Make-up remover; Make-
up sets; Nail enamel; Nail polish; Nail polish remover; Nail varnish; Non-
medicated skin care preparations; Perfumes; and
On-line retail store services featuring bath salts, body sprays, bubble bath,
compacts containing make-up, cosmetics, eau de toilette, face and body
glitter, make-up sets, make-up remover, nail enamel, nail polish, nail polish
remover, nail varnish, non-medicated skin care preparations, perfumes;
Retail store services featuring bath salts, body sprays, bubble bath,
compacts containing make-up, cosmetics, eau de toilette, face and body
glitter, make-up sets, make-up remover, nail enamel, nail polish, nail polish
remover, nail varnish, non-medicated skin care preparations, perfumes.
The HELP cited registration identifies “hair shampoo” and the HELP HAIR cited
registration includes “hair care preparations” among the identified goods.
While Applicant correctly notes that the goods and services are not identical, the
record nonetheless includes ample evidence of the relatedness of the goods and
services. For example:
The website of The Body Shop shows that the same mark featured on shampoo
and on body spray, fragrances, nail polish, and cosmetics, is used in connection with
retail store services featuring such goods;13

The website of The Face Shop shows that the mark featured on hair care
preparations, as well as cosmetics, body sprays, nail polish, nail polish remover,
cosmetics, is used in connection with retail store services featuring such goods;14

13 TSDR February 25, 2016 Office Action at 8-13 (thebodyshop-usa.com).
14 Id. at 14-20 (thefaceshop-america.com).
Serial No. 86807019
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The website of Mineral Fusion shows that the same mark appearing on cosmetics,
compacts containing make-up, shampoo, hair care preparations, and nail polish, is
used in connection with retail store services featuring such goods;15

The Aveda website shows that the Aveda mark on shampoo and hair care
preparations, cosmetics, bath salts, body mists, makeup remover, compacts
containing makeup, is also used in connection with its retail store services featuring
such goods;16

The Dr. Hauschka website shows that the same mark featured on hair & scalp
tonic, various cosmetics, non-medicated skin care preparations, is also used in
connection with retail store services featuring those goods;17

The Josie Maran website offers goods under that mark including nail polish
remover, hair serum, various cosmetics, and also shows the same mark in connection
with retail store services featuring those goods;18

The L’Occitane en Provence website displays goods bearing that mark including
shampoo, hair care preparations, bath salts, bubble bath, perfumes, make-up
remover, and various cosmetics, and shows the same mark used in connection with
retail store services featuring such goods;19 and

The Origins website shows that mark on various cosmetics, hair shampoo, bubble
bath, perfume, and makeup remover, and shows the same mark used in connection
with retail store services featuring such goods.20

This evidence clearly demonstrates that consumers are accustomed to encountering
the goods and services at issue in this case under the same mark.
Also, 13 use-based third-party registrations identify both Applicant’s goods and
services and the goods in the cited registrations under the same mark, thereby

15 Id. at 21-26 (mineralfusion.com).
16 TSDR September 14, 2016 Office Action at 6-13 (aveda.com).
17 Id. at 14-21 (dr.hauschka.com).
18 Id. at 22-26 (josiemarancosmetics.com).
19 Id. at 27-33 (usa.loccitane.com).
20 Id. at 34-41 (origins.com).
Serial No. 86807019
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suggesting that such goods and services may emanate from the same source. See Joel
Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1432 (TTAB 2013)
(“The use-based, third-party registrations . . . also have probative value to the extent
that they serve to suggest that the goods [and services] listed therein are of a kind
which may emanate from a single source under a single mark.”); see also In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). For example:
Registration No. 3746796 identifies, inter alia, cosmetics, nail polish, hair
conditioners, shampoo, and computerized on-line retail store services in the field of
cosmetics;21

Registration No. 2986102 identifies, inter alia, cosmetic preparations such as
makeup and nail polish, non-medicated hair care preparations, and retail store
services featuring “a full line of healthcare and beauty products”;22

Registration No. 3788733 identifies, inter alia, cosmetics, cologne, hair shampoo,
hair styling preparations, and retail store services featuring cosmetics;23

Registration No. 3992497 identifies, inter alia, cosmetics, makeup removers, nail
polishes, nail polish removers, bath salts, hair care preparations, namely, shampoos
and conditioners, and retail store services featuring items that include cosmetics;24

Registration No. 4050476 identifies, inter alia, face and body glitter, make-up, nail
polish, and hair care preparations, as well as retail store services that feature items
including cosmetics;25

Registration No. 4478657 identifies, inter alia, cosmetics, hair care preparations,
shampoos for hair, and retail store services featuring items including cosmetics;26

21 TSDR February 25, 2016 Office Action at 27-29.
22 Id. at 30-32.
23 Id. at 33-35.
24 Id. at 36-38.
25 Id. at 39-41.
26 Id. at 42-44.
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Registration No. 2806539 identifies, inter alia, body wash, hair care products,
perfumes, and cosmetics, as well as retail store services featuring goods that include
cosmetics;27

Registration No. 3746796 identifies, inter alia, various cosmetics, hair
conditioners, nail polish, perfumes, and retail store services in the field of cosmetics;28

Registration No. 3183221 identifies, inter alia, cosmetics, hair care preparations,
bath salts, and retail store services featuring cosmetics;29

Registration No. 4267380 identifies, inter alia, cosmetics containing minerals,
perfumes, shampoos and oils for hair care containing minerals, nail care preparations
containing minerals, and retail store services featuring cosmetics;30

Registration No. 4810230 identifies, inter alia, cosmetics, hair lotions, make-up
removing preparations, shampoos, and retail store services featuring cosmetics;31

Registration No. 4886844 identifies, inter alia, cosmetics, make-up removing
preparations, perfume, hair conditioners, nail varnish for cosmetic purposes, and
retail store services featuring cosmetics;32 and

Registration No. 4831934 identifies, inter alia, non-medicated skincare products,
shampoos, nail polish, nail polish remover, and retail store services featuring beauty
products.33

This evidence suggests that Applicant’s and Registrant’s goods and services are the
type that may emanate from the same source.
Accordingly, we find Applicant’s goods and services related to the goods in the
cited registrations. As noted above, likelihood of confusion applies as to all

27 TSDR September 14, 2016 Office Action at 42-44.
28 Id. at 45-47.
29 Id. at 48-50.
30 Id. at 51-53.
31 Id. at 54-56.
32 Id. at 57-59.
33 Id. at 60-62.
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goods/services in the class if there is likelihood of confusion involving any item in the
identification of goods/services in that class. Tuxedo Monopoly, 209 USPQ at 988; see
also Aquamar, 115 USPQ2d at 1126 n.5 (“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.”). This du Pont factor weighs in
favor of likely confusion.
2. Trade Channels
Turning to the trade channels, the identification of Applicant’s goods and services
and those in the cited registrations have no trade channel or consumer class
limitations. Thus, they are presumed to move in all channels of trade usual for such
goods and services and are available to all potential classes of ordinary consumers.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (affirming Board finding that where the identification is unrestricted, “we must
deem the goods to travel in all appropriate trade channels to all potential purchasers
of such goods”); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). The relatedness
evidence described above establishes that cosmetics, hair care preparations, and
perfume or cologne move in the same retail trade channels to the same consumers,
who are ordinary members of the public.
Applicant offers arguments about the anticipated trade channels for its goods
being distinct from the alleged actual distribution channels for Registrant’s goods.
However, we must “focus on the application and registrations rather than on real-
world conditions, because ‘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.’”
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Stone Lion Capital Partners, 110 USPQ2d at 1162 (quoting Octocom Sys., 16 USPQ2d
at 1787). We therefore remain unpersuaded by Applicant’s claims and evidence about
the alleged marketplace realities of the Registrants’ goods being sold only by
particular methods. See Cunningham, 55 USPQ2d at 1848 (holding that the
appellant “misstates the law” in arguing that the Board must focus on the goods as
sold in the marketplace, and stating that “the Board must look to the registrations
themselves to determine the scope of goods covered”).
This du Pont factor also clearly weighs in favor of likely confusion.
D. Sophisticated Purchasing
In its Brief, Applicant asserts, without supporting evidence, that “[c]onsumers of
beauty and other personal care products such as Applicant’s cosmetics are highly
sophisticated when it comes to brand identity.”34 Some of the relatedness evidence
discussed above, as well as evidence from the CVS Pharmacy website,35 shows that
most of the identified goods would be considered ordinary consumer goods that do not
necessarily sell at particularly high price points, and the same applies for the
services. Also, “attorney argument without support in the record . . . does not
overcome the prima facie case.” In re Consol. Specialty Rests. Inc., 71 USPQ2d 1921,
1929 (TTAB 2004). We consider this factor neutral.

34 7 TTABVUE 16 (Applicant’s Appeal Brief).
35 TSDR September 14, 2016 Office Action at 63-65.
Serial No. 86807019
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E. Consistency
Applicant argues that it is entitled to registration here in order to treat this
application consistently with its now-cancelled Registration No. 431133536 of the
same mark for similar identified goods and services. Although Applicant voluntarily
surrendered that registration in 2015, resulting in its cancellation in January 2016,
Applicant contends that because on the filing date of this application, the registration
coexisted with the cited registrations, its application should be allowed to register.
Applicant relies on the USPTO’s Consistency Initiative for support, and complains
that “the PTO has not responded to Applicant’s [Consistency Initiative] Request.”37
The USPTO describes the Consistency Initiative as an “instrument for applicants to
raise concerns about the occasional instances of inconsistent practice within the
Office.” Among other points about the Consistency Initiative, the USPTO’s webpage38
notes:
The Office will promptly review and consider each Request. The Office will
not respond directly to the Request, but action will be taken in the pending
application(s) if the Office deems it appropriate.… Requesters should note,
however, that subsequent action taken by the Office may differ from that
requested. Alternatively, the Office may determine that different handling
of the cases is appropriate, and no action will be taken.

As an initial matter, we reject Applicant’s reliance on its cancelled
registration. Having voluntarily surrendered the registration, Applicant

36 Registration No. 4311335 issued on April 2, 2013 under Section 44(e) of the Trademark
Act, 15 U.S.C. § 1126(e). It was cancelled on January 11, 2016.
37 7 TTABVUE 18 (Applicant’s Appeal Brief).
38 https://www.uspto.gov/trademark/trademark-updates-and-announcements/consistency-
initiative
Serial No. 86807019
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cannot claim an entitlement for consistency with what it chose to relinquish.
Regardless, as the Consistency Initiative guidelines make clear, it does not
create any such entitlement for an applicant. As the Board recently held in In
re Shabby Chic Brands, LLC, 122 USPQ2d 1139, 1145 (TTAB 2017):
Lastly, the Consistency Initiative is a program developed to aid the
examination by the Trademark Examining Group and decisions made
under the Initiative are not binding on the Board. Although we recognize
that “consistency is highly desirable,” In re Omega SA, 494 F.3d 1362, 83
USPQ2d 1541, 1544 (Fed. Cir. 2007), consistency in examination is not
itself a substantive rule of trademark law, and a desire for consistency
cannot overcome the requirements of the statute. See [In re] Cordua
[Rests., Inc.], [823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016)].

Finally, Applicant’s prior registration subsisted for less than three years, and
therefore was still subject to a possible petition for cancellation based on likelihood of
confusion, 15 U.S.C. § 1065, thus diminishing its probative value to weigh against
likelihood of confusion with the cited marks. In re USA Warriors Ice Hockey Prog.,
Inc., 122 USPQ2d 1790, 1793 (TTAB 2017).
Therefore, the treatment of Applicant’s now-cancelled registration does not
overcome the clear showing of likelihood of confusion established in this record.
III. Conclusion
The overall similarity of these marks for related goods and services that move in
the same channels of trade to the same classes of customers renders confusion likely,
regardless of any suggestiveness of the term “help” in the industry.
Decision: The refusal to register Applicant’s mark is affirmed with respect to both
International Classes.