Summit Entertainment, LLC

Trademark Trial and Appeal Board

Apr 11, 2016

No. 77921992 (T.T.A.B. Apr. 11, 2016)

This Opinion is Not a Precedent of the TTAB Hearing: February 10, 2016 Mailed: April 11, 2016 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Summit Entertainment, LLC _____ Serial No. 77921992 _____ Jill M. Pietrini and Paul Bost of Sheppard Mullin Richter & Hampton LLP, for Summit Entertainment, LLC. Leslie Richards, Trademark Examining Attorney, Law Office 106, Mary I. Sparrow, Managing Attorney. _____ Before Kuhlke, Taylor and Goodman, Administrative Trademark Judges. Opinion by Kuhlke, Administrative Trademark Judge: Summit Entertainment, LLC (“Applicant”) seeks registration on the Principal Register of the mark ECLIPSE (in standard characters) for goods ultimately identified as: Bed linen, bath linen, blankets, namely, bed blankets, baby blankets, children’s blankets, blanket throws, blankets for outdoor use, and traveling blankets, cloth banners, decorative wall hangings of textile, kitchen linen, shower curtains, and table linens, all relating to motion pictures Serial No. 77921992 - 2 - and entertainment concerning motion pictures, in International Class 24.1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in connection with the identified goods, so resembles the registered mark ECLIPSE (in standard characters) for “curtains,” in International Class 24,2 as to be likely to cause confusion, mistake or deception. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, Applicant requested remand for consideration of additional evidence and suspension of the Application based on a cancellation proceeding against the cited registration brought by a third party (Canc. No. 92054524). The Board remanded the Application and the Examining Attorney issued a suspension order on January 18, 2012. On May 5, 2014, the Examining Attorney issued a final refusal applicable only to Applicant’s “bed linen, bath linen, blankets, namely, bed blankets, baby blankets, children’s blankets …, blanket throws, blankets for outdoor use, and traveling blankets, cloth banners, decorative wall hangings of textile, kitchen linen, shower curtains, and table linens,” noting that the Application would proceed for the 1 Application Serial No. 77921992 was filed on January 28, 2010, under Section 1(b) of the Trademark Act, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. The original application included several other goods discussed infra. 2 Registration No. 3146942, issued on September 19, 2006, renewed. Serial No. 77921992 - 3 - remaining goods. The Applicant requested reconsideration of that final Office action, which was denied on February 5, 2015. Thereafter, Applicant requested remand, which was granted, for consideration of its request to divide the Application and place the “pet blankets, cloth coasters, elastic straps for luggage, namely, bands of elastic fabric to be stretched around luggage for the purpose of luggage identification, handkerchiefs, plastic place mats, plastic table covers, and potholders” in a child application and to amend the remaining goods in the parent application to include at the end of the recitation “all relating to motion pictures and entertainment concerning motion pictures.” On June 11, 2015, the request to divide was granted and the amendment to the parent application entered.3 In the denial of the request for reconsideration, the Examining Attorney maintained the refusal under Section 2(d). Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. Likelihood of Confusion When the question is likelihood of confusion, we analyze the facts as they relate to the relevant factors set out in 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 Co., Inc., 315 F.3d 3 The child Application Serial No. 77976327 has been published, without objection for: pet blankets, cloth coasters, elastic straps for luggage, namely, bands of elastic fabric to be stretched around luggage for the purpose of luggage identification, handkerchiefs, plastic place mats, plastic table covers and potholders. Serial No. 77921992 - 4 - 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). These factors and others are discussed below. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (even within the du Pont list, only factors that are “relevant and of record” need be considered). Applicant is the producer and distributor behind the Twilight movies and ECLIPSE refers to the third film in the Twilight movie franchise. App. Br., 36 TTABVUE 6.4 Applicant has obtained several registrations for the mark ECLIPSE for various goods (cosmetics, action figures, cloth bags, pillows and bandages for skin wounds) and for “licensing of merchandise associated with motion pictures.”5 It is, of course, common practice for companies to use the title of a film on various merchandising goods. L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1889 (TTAB 2008) (the licensing of commercial trademarks on “collateral products” has become a part of everyday life). The USPTO routinely registers such marks even if the use is ornamental because it serves as collateral use or secondary source. In re Paramount Pictures Corp., 213 USPQ 1111, 1112 (TTAB 1982) (MORK & MINDY registrable for decals and primary significance was to indicate television series). See also TMEP § 1202.03(c) (October 2015). 4 Citations to TTABVUE refer to the docket history system for the Trademark Trial and Appeal Board by entry and page number. 5 October 29, 2014 Response, pp. 142-150. Serial No. 77921992 - 5 - In making our determination, we first consider two issues highlighted by Applicant: (1) what effect, if any, does the addition of the wording “all relating to motion pictures and entertainment concerning motion pictures” to Applicant’s identification of goods have on the likelihood of confusion equation in this case; and (2) how narrow is the scope of protection for the ECLIPSE mark for “curtains” in International Class 24. Effect of Wording “all relating to motion pictures and entertainment concerning motion pictures” Applicant argues that: [Its goods are] marketed through mass market retailers and other affordable channels of commerce [and] [g]oods marketed under Applicant’s ECLIPSE mark are often sold using imagery from the Twilight Motion Pictures in order to further distinguish those goods in the marketplace. … Applicant’s identification of goods expressly contains a restriction, namely, they are all products “all relating to motion pictures and entertainment concerning motion pictures.” App. Br., 36 TTABVUE 16 (emphasis in original). While this may serve to restrict Applicant to selling only products that are marketed in connection with motion pictures and entertainment, the Registrant’s identification has no restriction and we must consider all ordinary channels of trade for the respective goods, not the Registrant’s actual channels of trade. The question would be, do the ordinary channels of trade for curtains include goods marketed in connection with motion pictures and entertainment concerning motion pictures? If they do, then Applicant’s “restriction” does not obviate the refusal. Serial No. 77921992 - 6 - Applicant has stated that its channels of trade are “mass market retailers and other affordable channels of commerce.” Id. These channels are certainly included in the trade channels for curtains. Applicant intends to license its mark ECLIPSE for use on various goods, which could include curtains. In fact, the identification originally included curtains. Registrant is the type of company that could obtain a license for such a mark for use on its curtains. While Applicant’s marketing language in the identification restricts its marketing environment, it encroaches on Registrant’s broad identification “curtains” that presumptively includes marketing in connection with a movie on any theme. Thus, “we do not see the language as imposing a meaningful limitation on Applicant's goods in any fashion, most especially with respect to either trade channels or class of purchasers.” In re i.am.symbolic, llc, 116 USPQ2d 1406, 1410 (TTAB 2015). Applicant argues that the goods are “often sold using imagery from the Twilight Motion Pictures.” However, the phrase “all relating to motion pictures and entertainment concerning motion pictures” does not require a limitation to a specific movie and the argument recognizes the option of marketing without such imagery by using the word “often.” Conversely, Registrant’s registration does not exclude use in relation to a movie, and, as such, the meaning and commercial impressions of the cited identical mark could include such context.6 6 We note that Applicant stresses the renown of its mark in connection with a movie. To the extent this has an impact in the determination, it would serve to increase likelihood of confusion by making it more likely that purchasers will remember the famous mark and think of it when encountering similar goods sold under a similar mark. Such likelihood of confusion is only a reason to refuse a new registration, not grant one. To the extent that the mark is well known, such fact supports refusal of Applicant’s application, “because when Serial No. 77921992 - 7 - Moreover, the marketing language in Applicant’s identification of goods does not avoid reverse confusion where Registrant’s identification is not limited by channels of trade or classes of purchasers. If the marks are identical and the goods, as identified, are identical or closely related and are a type of good that could be sold in relation to a motion picture, we must consider the nature of the goods to be the same. The statute still “protects the registrant and senior user from adverse commercial impact due to use of a similar mark by a newcomer.” In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993). As the Federal Circuit stated: The term “reverse confusion” has been used to describe the situation where a significantly larger or prominent newcomer “saturates the market” with a trademark that is confusingly similar to that of a smaller, senior registrant for related goods or services. Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 & n.12, 24 USPQ2d 1001, 1010 & n.12 (7th Cir. 1992), cert. denied, 61 U.S.L.W. 3621 (U.S. Apr. 19, 1993) (No. 92-1400). The junior user does not seek to benefit from the goodwill of the senior user; however, the senior user may experience diminution or even loss of its mark’s identity and goodwill due to extensive use of a confusingly similar mark by the junior user. Banff, Ltd. v. Federated Department Stores, Inc., 841 F.2d 486, 490, 6 USPQ2d 1187, 1191 (2d Cir. 1988); Ameritech, Inc. v. American Information Technologies confusion is likely, it is the prior Registrant that must prevail. Even if it eclipes the renown of the prior Registrant, Applicant’s fame does not entitle it to usurp the cited Registrant’s rights in the mark.” In re i.am.symbolic, 116 USPQ2d at 1413 n.7. Further, as explained in In re i.am.symbolic, “[t]he purported lack of fame of Registrant’s mark, as argued by Applicant, is of little consequence. See TMEP § 1207.01(d)(ix). Because of the nature of the evidence required to establish the fame of a registered mark, the Board normally does not expect the Examining Attorney to submit evidence as to the fame of the cited mark in an ex parte proceeding. See In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006). And, in an ex parte analysis of the du Pont factors for determining likelihood of confusion, the ‘fame of the mark’ factor is normally treated as neutral when no evidence as to fame has been provided. See id.; see also In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009) (noting that the absence of evidence as to the fame of the registered mark “is not particularly significant in the context of an ex parte proceeding”).” Id. at 1413. Serial No. 77921992 - 8 - Corp., 811 F.2d 960, 966, 1 USPQ2d 1861, 1866 (6th Cir. 1987). The avoidance of confusion between users of disparate size is not a new concept; however, the weighing of the relevant factors must take into account the confusion that may flow from extensive promotion of a similar or identical mark by a junior user. See DeCosta v. Viacom International Inc., 981 F.2d 602, 607-10, 25 USPQ2d 1187, 1191-93 (1st Cir. 1992). Thus, because of the presumptions we must accord the registration, the unilateral marketing restrictions “essentially [are] a distinction without a difference for purposes of our likelihood of confusion analysis.” In re i.am.symbolic, llc, 116 USPQ2d at 1410. Applicant also points to what it is (movie producer) and what the Registrant is (manufacturer of curtains) and how these respective companies actually engage in commerce. These arguments are more directed to an infringement claim drawing upon real world use of the marks, but our inquiry is confined to the register. It is possible to have the register reflect more accurately the real world facts on the ground as Applicant seeks to do with its addition of the wording “all relating to motion pictures and entertainment concerning motion pictures”; however to achieve the full picture, in particular where there are no differences in the marks, Applicant would have to seek to restrict the cited registration to its respective trade channels and marketing through a petition for partial cancellation.7 7 See Section 18 of the Trademark Act, 15 U.S.C. § 1068. See also TBMP § 309.03(d) (June 2015) and cases cited therein. Serial No. 77921992 - 9 - Strength/Weakness of the ECLIPSE Marks In Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015) the Court found third-party registrations “in the food service industry” which included goods (various food items) and services (restaurants, cafes, bars) to be relevant to the question of weakness of a mark for restaurant services. In Jack Wolfskin Ausrüstung Für Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015) the Court found relevant on the question of weakness of a mark, third-party registrations for the same or similar goods all in the same field of clothing. Applicant submitted a printout of a listing of 338 “live” third-party registrations with the word ECLIPSE in the marks, but the listing does not provide information as to the nature of the goods or services for which the marks are registered.8 As such, we cannot determine the relevance of these third-party registrations on the question of whether the word ECLIPSE is weak for such goods. The record also includes printouts of third-party registrations for home-related items that could perhaps be considered to fall within the same general category of Applicant’s and Registrant’s goods in that they are also home décor items: ECLIPSE LIGHTING and design for, inter alia, architectural wall sconces and designer pendants for residential use (Reg. No. 3490407);9 ECLIPSE for ceiling fans (Reg. No. 2209916);10 8 October 29, 2014 Response pp. 15-24. 9 October 29, 2014 Response p. 26. 10 October 29, 2014 Response p. 28. Serial No. 77921992 - 10 - ECLIPSE for metal hangers for decorative mesh panels and screens (Reg. No. 3020930);11 ECLIPSE for sliding wardrobe doors and room dividers (Reg. No. 3991426);12 and ECLIPSE and design for mattresses, box springs, studio couches, convertible chairs and beds (Reg. No. 896886).13 In addition, Applicant notes that the cited registration issued over the following third-party registrations owned by one third-party: ECLIPSE for non-metal interior window shutters (Reg. No. 3804972); and ECLIPSE for window-shade or window-blind rollers (Reg. No. 188958).14 Applicant also relies on a cancellation proceeding brought by that third-party against the cited registration wherein the Registrant, in denying likelihood of confusion in its answer to the petition, highlighted seven third-party registrations to support its assertion that the Petitioner’s (the third-party) mark is weak. Applicant argues Registrant’s following statement amounts to an admission that the mark is weak: The records of the Patent and Trademark Office disclose that more than 1000 applications have been filed for trademarks incorporating or consisting entirely of the common English language word ECLIPSE, including the following trademarks that have been registered: ….15 11 October 29, 2014 Response p. 30. 12 October 29, 2014 Response p. 32. 13 October 29, 2014 Response p. 34. 14 October 29, 2014 Response pp. 39-42. 15 October 29, 2014 Response p. 55 (Registrant’s answer in Cancellation No. 92054524). Serial No. 77921992 - 11 - Applicant submitted printouts of the referenced third-party registrations: Eclipse Architectural (stylized form) for, inter alia, hardware systems for exterior folding doors and windows (Reg. No. 3232589 issued April 24, 2007);16 DUETTE ECLIPSE for blinds/shades of woven and non- woven fabrics (Reg. No. 1739869 cancelled September 20, 2003);17 ECLIPSE for vinyl fabric for the manufacture of tents, awnings, canopies and covers (Reg. No. 2256833 issued June 29, 1999);18 ECLIPSE for fabric containing a percentage of carbon yarns for use in protective apparel in clean room and health care environments (Reg. No. 2183629 cancelled on May 28, 2005);19 ECLIPSE and design for waterproof breathable fabrics of nylon, polyester and cotton employed in the fabrication of articles of clothing, excluding footwear such as coats, jackets, and pants for men and women sold to clothing manufacturers (Reg. No. 2265937 issued August 3, 1999);20 ECLIPSE for upholstery fabric (Reg. No. 1597508 cancelled on November 25, 1996);21 and ECLIPSE BACKGROUNDS for printed backgrounds for photographic use, namely, photorealistic backgrounds printed on fabric (Reg. No. 3702369 issued October 27, 2009).22 16 October 29, 2014 Response p. 60. 17 October 29, 2014 Response p. 62. 18 October 29, 2014 Response p. 64. 19 October 29, 2014 Response p. 65. 20 October 29, 2014 Response p. 67. 21 October 29, 2014 Response p. 69. 22 October 29, 2014 Response p. 70. Serial No. 77921992 - 12 - Three of these registrations are cancelled and are of little probative value. In addition, it appears many did not coexist on the Register. Even if we consider them to have some relevance based on an overly generous reading of Juice Generation, Inc. v. GS Enterprises LLC, 115 USPQ2d 1671 and Jack Wolfskin Ausrüstung Für Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 116 USPQ2d at 1129, they do not narrow the protection to such an extent that an identical mark can register over a registration for closely related goods. Applicant also points to the following statements made by Registrant in the prior proceeding: Petitioner’s pleaded registrations identify only shutters registered in Class 19 in 2010, and rollers for window shades or blinds registered in Class 6 in 1924. None of these goods is curtains and none is in Class 24. Registrant’s curtains are entirely different products than shutters which are manufactured using entirely different materials than curtains, and which look and feel different than curtains, have different uses than curtains, and are purchased and used for entirely different purposes.23 Applicant argues that if the third-party and Registrant agreed to coexist “it is illogical to conclude” that Applicant’s textile goods are related to Registrant’s curtains. App. Br., 36 TTABVUE 18. Finally, drawing on these responses Applicant argues that “Registrant has narrowly defined its scope of protection to ‘curtains’ and no more. … Registrant should be barred by judicial estoppel from asserting a 23 October 29, 2014 Response pp. 53 (affirmative defenses in cancellation no. 92054524). Serial No. 77921992 - 13 - likelihood of confusion against Applicant, because Applicant’s identification of goods do not cover ‘curtains’.” App. Reply Br., 40 TTABVUE 4. Applicant relies on New Hampshire v. Maine, 532 US 742, 751 (2001) which sets out the following factors that typically inform the decision of whether to apply the doctrine of judicial estoppel in a particular case: (1) is the party’s later position “clearly inconsistent” with its earlier position; (2) was the party successful in persuading a court to accept that party’s earlier position so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled”; and (3) would the party seeking to assert an inconsistent position derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Even if we accept the proposition that application of judicial estoppel would be appropriate in ex parte proceedings, the facts here do not meet the factors set forth in New Hampshire v. Maine. Applicant’s goods are not the same as the petitioner’s goods in the cancellation proceeding, thus there is no inconsistency in a presumed position by Registrant; therefore, factors 1 through 3 are not met. In fact, this record shows the close relationship of the textile goods at issue which stands in contrast to the comparison of hardware for windows and window-blind rollers, and curtains.24 24 We further note that, in general, prior statements made in an ex parte context seeking to overcome a likelihood of confusion refusal do not serve to “estop” a party from taking a different position in an inter partes proceeding. To hold otherwise would be to deprive a plaintiff of its right to avail itself of FRCP 8(e)(2) which provides for inconsistent and hypothetical proceedings. While the situation here is reversed, i.e., statements made in defense to an inter partes proceeding serving to estop an ex parte refusal, the general idea remains the same. See also In re Sela Prods., LLC, 107 USPQ2d 1580 (TTAB 2013) (“[prior] statements cannot be viewed as binding judicial admissions, since a decision maker may not Serial No. 77921992 - 14 - Similarity/Dissimilarity of the Marks We consider the marks 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 ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 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). Applicant’s ECLIPSE mark is identical to Registrant’s ECLIPSE mark. As noted above, the connotation of the mark ECLIPSE is the same in connection with Applicant’s “bed linen, bath linen, blankets, namely, bed blankets, baby blankets, children’s blankets, blanket throws, blankets for outdoor use, and traveling blankets, cloth banners, decorative wall hangings of textile, kitchen linen, shower curtains, and table linens, all relating to motion pictures and entertainment concerning motion pictures” as it is for Registrant’s “curtains” in that consumers consider a party’s opinion relating to the ultimate legal conclusion of likelihood of confusion (particularly in another case) as a binding admission of a fact.”) (citing Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 929, 198 USPQ 151, 154 (CCPA 1978) (“that a party earlier indicated a contrary opinion respecting the conclusion in a similar proceeding involving similar marks and goods is a fact, and that fact may be received in evidence as merely illuminative of shade and tone in the total picture confronting the decision maker.”)). Serial No. 77921992 - 15 - familiar with Applicant’s movie could obtain the same connotation from Registrant’s mark. For those consumers not familiar with the movie, the marks would engender the same meaning, i.e., “any obscuration of light.”25 Similarity of the Goods/Channels of Trade/Consumers 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 application and registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also 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, 1004 (Fed. Cir. 2002); and Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). When marks are identical, the relationship between the goods of the respective parties need not be as close to support a finding of likelihood of confusion as might apply where differences exist between the marks. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992), cert. denied 506 US 1034 (1992). The record, comprising use-based third-party registrations and third-party websites, establishes that Applicant’s “Bed linen, bath linen, blankets, namely, bed 25 Dictionary.com based on the RANDOM HOUSE DICTIONARY (2016) (www.dictionary.com). Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983) (the Board may take judicial notice of dictionary definitions). See also In re Driven Innovations, Inc., 115 USPQ2d 1261, 1266 n.18 (TTAB 2015); In re Petroglyph Games Inc., 91 USPQ2d 1332, 1334 n.1 (TTAB 2009); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). Serial No. 77921992 - 16 - blankets, baby blankets, children’s blankets, blanket throws, blankets for outdoor use, and traveling blankets, cloth banners, decorative wall hangings of textile, kitchen linen, shower curtains, and table linens, all relating to motion pictures and entertainment concerning motion pictures” and Registrant’s “curtains” are closely related and are frequently offered under the same mark in the same trade channels. See, e.g., Reg. No. 3588986 for the mark HEAVENLY BED AT HOME for, inter alia, bath linen, bed blankets, bed linen, curtains, household linen, towels, shower curtains; Reg. No. 3600214 for the mark DISNEY FAIRIES for, inter alia, bath linen, bath towels, bed blankets, bed linen, blanket throws, curtains, household linen, throws, washcloths; Reg. No. 3179940 for the mark ROYAL TRADING and design for, inter alia, bath towels, covers for cushions, fabric table runners, face towels, hand towels, shower curtains, table cloths not of paper, table linen, window curtains; Reg. No. 3366837 for the mark MICRO COTTON for, inter alia, bed linens, throws, hair towels, sport towels, fabric shower curtains, kitchen towels, table linen, fabric table runners, cushion covers and window curtains; Reg. No. 3370479 for the mark FRIENDLY FABRICS for, inter alia, textiles and textile goods, namely, upholstery fabric and textile wall hanging; curtains made of textile fabric; net curtains, and bed and table linen; Reg. No. 3272938 for the mark Y!N J!E and design for, inter alia, textile wall hangings; textile napkins, face towels made of textile materials; bed covers; bed linen; blanket throws; bed blankets; fabric table runners; curtains made of textile fabrics; door curtains; bath towels; Reg. No. 3860765 for the mark JOJO DESIGNS for, inter alia, bed blankets; bed linen; fabric valances; fabric window Serial No. 77921992 - 17 - coverings and treatments, namely, curtains, draperies, valances; textile wall hangings; textile wall hangings, namely, cloth posters; Reg. No. 3198850 for the mark KAREN RHODES for, inter alia, bed blankets; bed linen; curtains; household linen; shower curtains; table cloths; table linen; window curtains; Reg. No. 3909383 for the mark CASSERINA for, inter alia, bath linen; bed blankets; curtains; dining linens; dish cloths; kitchen linens; kitchen towels; shower curtains; table linen; window curtains.26 In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-1218 (TTAB 2001) (third-party registrations may serve to suggest that the listed goods and/or services are of a type which may emanate from a single source); In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). See also third-party websites showing various combinations of bed linen, bath linen, blankets, kitchen linen, shower curtains, table linens and curtains sold under the same mark at the same online retail store (Sears27 J.C. Penney28 Dillards29 Target30 Walmart31 Country Curtains32 BrylaneHome33 26 January 25, 2011 Office action, pp. 4-40, 51-52. 27 September 19, 2011 Office action, pp. 2-19. 28 September 19, 2011 Office action, pp. 19-31. 29 September 19, 2011 Office action, pp. 43-57. 30 September 19, 2011 Office action, pp. 58-80. 31 September 19, 2011 Office action, pp. 81-93. 32 February 5, 2015 Office action, pp. 30-32. 33 February 5, 2015 Office action, pp. 33-36. Serial No. 77921992 - 18 - Touch of Class34 Ginny’s35 Pottery Barn36 Curtain & Bath Outlet37 The Home Decorating Company38). In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1371 (TTAB 2009) (website evidence probative on the question of relatedness of goods and services); In re Paper Doll Promotions, Inc., 84 USPQ2d 1660, 1668 (TTAB 2007). Applicant argues there is no evidence of record to support a finding that the goods are related because the third-party registrations and websites relied upon by the Examining Attorney do not have an example with goods “relating to motion pictures and entertainment concerning motion pictures”; however this finding is based on a legal presumption that does not allow the Board to unilaterally curtail a Registrant’s rights. Registrant’s broad identification “curtains” encompasses the goods in all ordinary channels of trade including marketing in connection with movies of any theme. Based on this evidence we find Applicant’s goods to be closely related to curtains. Applicant argues the mark ECLIPSE is weak in this field. As noted above, this record does not establish that ECLIPSE is sufficiently weak in this field to allow for registration of an identical mark for such closely related goods. As to the channels of trade and classes of consumers, as noted above, we must presume that Registrant’s “curtains” are marketed in all normal trade channels for 34 February 5, 2015 Office action, pp. 37-44. 35 February 5, 2015 Office action, pp. 45-47. 36 February 5, 2015 Office action, pp. 48-58. 37 February 5, 2015 Office action, pp. 59-60. 38 February 5, 2015 Office action, pp. 61-72. Serial No. 77921992 - 19 - such goods and offered to all normal classes of purchasers for such goods. See In re Anderson, 101 USPQ2d 1912, 1920 (TTAB 2012); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). This would include Applicant’s “mass market retailers” channels of trade. In addition, as noted above, Applicant’s limitation to goods which are “all relating to motion pictures and entertainment concerning motion pictures” encroaches on Registrant’s broad identification which presumptively encompasses such marketing. Under such circumstances, we must presume the goods travel in the same channels of trade and are offered to the same classes of consumers. In re Viterra Inc., 101 USPQ2d at 1908. Moreover, there is nothing in the record to dissuade us that such a limitation in Applicant’s identification could prevent reverse confusion. Because of the presumptions accorded the cited registration we must consider Registrant’s curtains to be sold in the same mass retailer under the identical mark ECLIPSE; even without being marketed as “all relating to motion pictures and entertainment concerning motion pictures” or placed in another aisle, confusion would still be likely. Thus, based on the identifications themselves and the evidence of record, we find that Applicant’s goods and the Registrant’s goods, as identified in the respective application and registration, can emanate from the same source and be offered through the same channels of trade to the same classes of customers. In view thereof, these du Pont factors favor a finding of likelihood of confusion. Serial No. 77921992 - 20 - Sophistication of Purchasers Applicant argues that the potential purchasers of the Registrant’s goods would exercise a high degree of care and this factor should weigh in Applicant’s favor. Applicant’s arguments and evidence regarding Registrant’s actual use are unavailing because they impermissibly narrow the scope of the registration by extrinsic evidence. It is well-established that the question of likelihood of confusion must be determined on the basis of an analysis of the mark as applied to the goods and/or services recited in an applicant’s application vis-à-vis the goods and/or services recited in the cited registration, rather than what the evidence shows the goods and/or services to be. In re Total Quality Group Inc., 51 USPQ2d 1474, 1476 (TTAB 1999). Accord, Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). In our analysis, we must consider all potential customers, including the less sophisticated. In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986) (average ordinary wine consumer must be looked at in considering source confusion). There is nothing in the record that purchasers of the applied-for goods in retail stores exercise greater care in their purchase other than the usual care taken in purchasing such items. However, even if we were to assume that purchasers of Registrant's curtains “are likely to review the product carefully and study different brands before making a selection,” it is settled that even sophisticated purchasers are not immune from source confusion, especially in cases such as the present one involving identical marks and legally identical and closely related goods. See In re Research Trading Serial No. 77921992 - 21 - Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers … are not infallible.”)). See also In re Shell Oil Co., 26 USPQ2d at 1690; In re Decombe, 9 USPQ2d 1812 (TTAB 1988). The identity of the marks and the relatedness of the goods sold thereunder outweigh any presumed sophisticated purchasing decision. See HRL Associates, Inc. v. Weiss Associates, Inc., 12 USPQ2d 1819 (TTAB 1989), aff'd, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decision, and expensive goods). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162-63 (Fed. Cir. 2014). Conclusion In conclusion, because the marks are identical, the goods are closely related, and the channels of trade and consumers overlap, we find that confusion is likely between Applicant’s mark ECLIPSE and the mark ECLIPSE in the cited registration. Decision: The refusal to register Applicant’s mark is affirmed.