Sunrise Apparel Group, LLC

Trademark Trial and Appeal Board

Oct 9, 2015

No. 85587635 (T.T.A.B. Oct. 9, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: October 9, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sunrise Apparel Group, LLC
_____

Serial No. 85587635
_____

Jill M. Pietrini of Sheppard Mullin Richter & Hampton LLP,
for Sunrise Apparel Group, LLC.
Keri-Marie Cantone, Trademark Examining Attorney, Law Office 104,
Chris Doninger, Managing Attorney.
_____

Before Zervas, Mermelstein and Greenbaum,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Sunrise Apparel Group, LLC (“Applicant”) seeks registration on the Principal
Register of the mark HINT (in standard characters) for
Jewelry; key chains as jewelry in International Class 14.1
The Trademark Examining Attorney has finally refused registration of
Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark, when used on or in connection with the identified

1 Application Serial No. 85587635 was filed on April 3, 2012, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85587635
- 2 -
goods, is likely to cause confusion with the mark E-HINT (in standard characters)
for “retail jewelry store services” in International Class 35.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012); and In re
Majestic Distilling Co., Inc., 315 F.3d 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 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 differences in the
marks.”). We consider each of the factors as to which Applicant or the Examining
Attorney presented arguments or evidence. The others, we consider to be neutral.
A. Relatedness of the Goods and Services
We turn first to the du Pont factor of the relatedness of the goods and services.
We base our evaluation on the goods and services as they are identified in the

2 Registration No. 2492322 issued September 25, 2001; renewed.
Serial No. 85587635
- 3 -
application and registration, and we cannot read limitations into these goods and
services. Stone Lion Capital Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002).
Applicant’s identified goods are “jewelry; key chains as jewelry,” and
Registrant’s identified services involve the retail sale of jewelry. It is well
established that goods and services may be related. In re Hyper Shoppes, 837 F.2d
463, 6 USPQ2d 1025, 1025 (Fed. Cir. 1988) (BIGGS for retail grocery and general
merchandise store services likely to be confused with BIGGS for furniture). Indeed
in a case with facts similar to those presented herein, this Board held that “[i]t is
clear that consumers would be likely to believe that jewelry on the one hand and
retail stores selling jewelry on the other emanate from or are sponsored by the same
source if such goods and services are sold under the same or similar marks.” In re
Thomas, 79 USPQ2d 1021, 1023 (TTAB 2006) (citing Fortunoff Silver Sales, Inc. v.
Norman Press, Inc., 225 USPQ 863, 866 (TTAB 1985) (“there is little question that
jewelry store services and jewelry are highly related goods and services”); and In re
Jewelmasters, Inc., 221 USPQ 90 (TTAB 1983)).
The evidentiary record in this case also supports a finding that jewelry and
retail jewelry stores are related. In particular, the Examining Attorney submitted
copies of ten use-based third-party registrations for both jewelry and retail stores
Serial No. 85587635
- 4 -
selling jewelry.3 Third-party registrations which individually cover a number of
different goods and services that are based on use in commerce may have some
probative value to the extent that they serve to suggest that the listed goods and
services are of a type which may emanate from the same source. See In re Anderson,
101 USPQ2d 1912, 1919 (TTAB 2012); In re Davey Prods. Pty. Ltd., 92 USPQ2d
1198, 1203 (TTAB 2009); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993). In addition, the Examining Attorney submitted screenshots from
commercial Internet websites showing that five retail jewelry stores (Claire’s,4
Jared,5 Tiffany,6 Harry Winston7 and Cartier8) sell jewelry under their respective
names.
In its brief, Applicant attempts to distinguish the identified goods and services
by arguing and relying on evidence that Applicant’s identified goods “are part of a
broader array of merchandise,” while Registrant actually offers a “message service
for prompting people to purchase jewelry,” i.e., a service that “allows individuals to
‘drop a hint’ to a significant other to make a jewelry purchase.”9 However, what
Applicant and Registrant actually offer under their respective marks is not

3 September 5, 2013 Office Action, TSDR at 14-44. The registrations include Reg. No.
3522475 (HYDE PARK FINALE), Reg. No. 3262654 (PJ), Reg. No. 438317 (CRONIN
JEWELERS), Reg. No. 3236260 (NANKAII), Reg. No. 3344292 (EVERY DIAMOND TELLS
A STORY) and Reg. No. 4210098 (WHEN IT IS TIME FOR SOMETHING SPECIAL).
4 July 18, 2012 Office Action, TSDR at 6-9 and .
5 July 18, 2012 Office Action, TSDR at 11 .
6 July 18, 2012 Office Action, TSDR at 10 .
7 September 5, 2013 Office Action, TSDR at 5-8 .
8 September 5, 2013 Office Action, TSDR at 9-11 .
9 9 TTABVUE 18.
Serial No. 85587635
- 5 -
relevant. We are bound by the identifications of goods and services in the
application and registration, respectively, and cannot limit the goods and services to
what Applicant’s evidence shows them to be. Stone Lion, 110 USPQ2d at 1162; see
also In re Thor Tech Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009) (“we must also
analyze the similarity or dissimilarity and nature of the goods based on the
description of the goods set forth in the application and the registration at issue …
we may not limit or restrict the trailers listed in the cited registration based on
extrinsic evidence.”).
Based upon the evidence of record, we find that consumers would believe that
Applicant’s jewelry is highly related to Registrant’s retail jewelry store services and
may emanate from a common source. Moreover, it is not necessary for the
Examining Attorney to prove likelihood of confusion with respect to each item of
goods identified in Applicant’s single-class application; if there is likelihood of
confusion with respect to any of Applicant’s identified goods, the refusal of
registration must be affirmed. See Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
The second du Pont factor strongly weighs in favor of a finding of likelihood of
confusion.
B. Channels of Trade and Conditions of Purchase
As to the channels of trade and conditions of purchase, because the identification
of goods in the application and the identification of services in the registration
contain no limitations as to channels of trade and classes of purchasers, it is
Serial No. 85587635
- 6 -
presumed that the goods identified in the application move in all channels of trade
normal for those goods, such as the retail jewelry stores identified in the
registration, and that they are available to all classes of purchasers for those goods
and services, including members of the general public. See Stone Lion, 110 USPQ2d
at 1161; In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). As neither the
application nor the registration contain limitations as to the channels of trade or
classes of purchasers, and in light of the above-discussed evidence of third party
commercial websites showing that various retail jewelry stores such as Tiffany,
Cartier and Jared sell jewelry bearing the name of the store, we find the channels of
trade and classes of purchasers to be the same. See Anderson, 101 USPQ2d at 1920.
See also Thomas, 79 USPQ2d at 1023 (deeming channels of trade and classes of
purchasers to be the same for jewelry and jewelry stores when the application and
registration contain no limitations).
Applicant’s arguments regarding the conditions under which and buyers to
whom Registrant’s sales are made, i.e., that Registrant sells expensive jewelry, such
as diamond engagement rings, to careful consumers, such as engaged couples
seeking engagement rings, are not persuasive because no such restrictions appear
in the identification of services in the registration. As stated above, we are bound by
the identifications as written in the application and cited registration, and cannot
limit Applicant’s goods or Registrant’s services – or their channels of trade or
classes of customers – to what any evidence may show them to be. Stone Lion, 110
USPQ2d, at 1162 (“It was proper, however, for the Board to focus on the application
Serial No. 85587635
- 7 -
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.”); In re Dixie Rests., Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Bercut-Vandervoort & Co., 229
USPQ 763, 764-65 (TTAB 1986). In other words, because there are no limitations in
the identifications of goods and services, we must consider that both Applicant and
Registrant may sell all types of jewelry, including expensive diamond rings, as well
as inexpensive and costume jewelry, to all types of purchasers.
Moreover, even if purchasers of diamond engagement rings are discriminating,
that does not necessarily mean that they are immune from source confusion because
as discussed above, the goods and services are highly related and, as discussed
below, the marks are very similar. Palm Bay Imports, 73 USPQ2d at 1695; In re
Decombe, 9 USPQ2d 1812 (TTAB 1988). Further, the purchasers of at least
inexpensive and some costume jewelry are ordinary consumers who would exercise
only a normal degree of care in purchasing jewelry, and who are likely to purchase
jewelry on impulse, thereby increasing the risk of confusion. See Thomas, 79
USPQ2d at 1024 (“the purchasers of at least costume items of jewelry are ordinary
members of the general public. Considering that this type of jewelry, as applicant
points out, is relatively inexpensive, it is therefore likely to be purchased casually
and on impulse, thus increasing the risk of confusion.”) (citing Kimberly-Clark Corp.
v. H. Douglas Enter., Ltd., 775 F.2d 1144, 227 USPQ 541 (Fed. Cir. 1985)).
Serial No. 85587635
- 8 -
The third and fourth du Pont factors also weigh in favor of a finding of likelihood
of confusion.
C. Comparison of the Marks
We next consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d, 1901,
1905 (TTAB 2007)). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re
Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
Our analysis cannot be predicated on dissection of the involved marks. Stone
Lion, 110 USPQ2d at 1161. Rather, we are obliged to consider the marks in their
entireties. Id. See also, Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212
USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”). Nonetheless, there is nothing improper in stating that, for
Serial No. 85587635
- 9 -
rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. Stone Lion, 110 USPQ2d at 1161. For instance, as our principle
reviewing court has observed, “[t]hat a particular feature is descriptive or generic
with respect to the involved goods or services is one commonly accepted rationale for
giving less weight to a portion of the mark.” See In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Further, where, as here, goods and
services are highly related, “the degree of similarity necessary to support a
conclusion of likely confusion declines.” Shen Manufacturing Co., Inc. v. The Ritz
Hotel Limited, 393 F.3d 1238, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004).
In comparing the two marks, we note that Registrant’s mark E-HINT
incorporates the entirety of Applicant’s mark HINT. Likelihood of confusion often
has been found where the entirety of one mark is incorporated within another. See
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)
(applicant’s mark ML is similar to registrant’s mark ML MARK LEES); Lilly
Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967)
(THE LILLY as a mark for women’s dresses is likely to be confused with LILLI
ANN for women's apparel including dresses); In re United States Shoe Corp., 229
USPQ 707, 709 (TTAB 1985) (CAREER IMAGE for women’s clothing stores and
women’s clothing likely to cause confusion with CREST CAREER IMAGES for
uniforms including items of women’s clothing).
Serial No. 85587635
- 10 -
Applicant argues that the letter “E” in Registrant’s mark distinguishes
Applicant’s mark HINT from Registrant’s mark E-HINT, and that it is the
dominant term in Registrant’s mark because it appears first in the mark. We do not
find either argument persuasive.
As to the first argument, the Board has recognized that the prefix “e” is
shorthand for “electronic.” See In re Int'l Business Machines Corp., 81 USPQ2d
1677, 1679 (TTAB 2006); In re Styleclick, 57 USPQ2d 1445, 1447-48 (TTAB 2000).
Evidence of record from Wikipedia and Netlingo demonstrating that the letter “E-,”
as used as a prefix, has become commonly recognized as a designation for services
that are provided electronically, support this finding.10 In further support of this
finding, we take judicial notice of the dictionary definition from WEBSTER’S NEW
WORLD DICTIONARY AND THESAURUS (2nd ed. 2002), attached to the Examining
Attorney’s brief, which defines the letter “E-” or “e-” a prefix meaning “electronically
on the Internet [E-commerce].”11 Accordingly, we agree with the Examining
Attorney that “[t]he ‘E’ at the beginning of the [R]egistrant’s mark is descriptive
because it indicates that the [R]egistrant’s retail jewelry store services are provided
online.”12

10 September 5, 2013 Final Office Action at 7-9 and 17.
11 12 TTABVUE 12. The Board may take judicial notice of dictionary definitions, 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), including online dictionaries that exist in
printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006).
12 12 TTABVUE 2.
Serial No. 85587635
- 11 -
As to the second argument, we acknowledge that the common word HINT is the
second term in Registrant’s mark; however, in this case, we find that the word
placement is not sufficient to distinguish the marks in that the letter “E” simply
modifies, and appears as a variant of, the common element HINT, itself an
arbitrary, or at worst, equally suggestive term as applied to the goods and services
at issue, as discussed below. In United States Shoe, the Board observed that
“Applicant's mark would appear to prospective purchasers to be a shortened form of
registrant's mark.” United States Shoe, 229 USPQ at 709. Therefore, we find that
Registrant’s mark is dominated by the word HINT.
With respect to meaning, Applicant argues that the word “hint” has several
meanings, and that when used in Registrant’s mark E-HINT, the word “hint”
means “a suggestion or implication given in an indirect or subtle manner,” while the
word “hint” in Applicant’s mark means “a small amount or trace.”13 To support
these contentions, Applicant submitted dictionary definitions of the word “hint,”14
three screenshots of Registrant’s website showing uses of the mark E-HINT,15 and a
press release in which Applicant describes its line of goods under the mark HINT.

13 9 TTABVUE 14-16.
14 March 6, 2014 Request for Reconsideration, TSDR at 11. COLLINS ENGLISH DICTIONARY
. We note this definition is not from the COLLINS AMERICAN
ENGLISH DICTIONARY, and therefore is of limited probative value. However, we take
judicial notice of the following definition of the word “hint” from the MERRIAM-WEBSTER
ONLINE DICTIONARY : “2a: a statement conveying by implication
what it is preferred not to say explicitly. 2b: an indirect or summary suggestion . 3: a slight indication of the existence, approach, or nature of something: CLUE. 4: a
very small amount: SUGGESTION .” Red Bull, 78 USPQ2d at
1378.
15 February 17, 2012 Response to Office Action, TSDR at 29-38.
Serial No. 85587635
- 12 -
The press release states that Applicant’s mark HINT “is designed to touch on the
trends, but not scare away shoppers who might be intimidated by overly trendy
merchandise[,]” and that “[i]t’s a hint of whatever the most relevant trends are for
the season. It can be a hint of shine or a hint of plaid or a hint of boho.”16
Applicant, however, did not submit evidence of consumer perception to buttress
its contention that the term “hint” means two different things when viewed as the
mark HINT for jewelry and in the mark E-HINT for retail jewelry stores, and such
a conclusion is not obvious from the record. We conclude instead that the same
meanings of the word “hint” attach equally to the mark HINT for jewelry and the
mark E-HINT for retail jewelry stores. Further, Applicant’s marketing efforts with
respect to other HINT marks for other goods are not relevant in this proceeding,
where the focus is on the mark Applicant seeks to register, rather than other marks
that Applicant has used or registered. To the extent Applicant is attempting to raise
a family of marks argument, such is “not available to an applicant seeking to
overcome a likelihood-of-confusion refusal.” In re Cynosure, Inc., 90 USPQ2d 1644,
1645-46 (TTAB 2009). See also In re Hitachi High-Technologies Corp., 1772 (TTAB
2014) (establishment of a “family of marks” requires consideration of use of the
marks, which usually is beyond the scope of examination in an ex parte proceeding).
Applicant’s mark HINT contains no other matter by which to distinguish it from
Registrant’s mark E-HINT. Because of the identical term HINT, which dominates
Registrant’s mark E-HINT and has, at best, an equally suggestive meaning relating

16 March 6, 2014 Request for Reconsideration, TSDR at 17.
Serial No. 85587635
- 13 -
to jewelry and retail jewelry stores, we conclude that overall, the marks are very
similar in sound, appearance, meaning and commercial impression. Dixie Rests., 41
USPQ2d at 1534 (Court held that the addition of “The,” “Cafe” and a diamond-
shaped design to registrant’s DELTA mark still resulted in a likelihood of
confusion). This du Pont factor also weighs heavily in favor of a finding of likelihood
of confusion.
D. Third-Party Marks
Applicant argues that the term HINT is weak and entitled to a limited scope of
protection in view of third party uses of that term in relation to jewelry or retail
jewelry stores. In support of this assertion, Applicant submitted with its December
17, 2012 Response to Office Action approximately sixty third-party use-based
registrations that comprise or include the word HINT for a variety of goods and
services.17 However, these marks bear little overall resemblance to the marks at
issue herein,18 or are for unrelated goods or services.19 In addition, the third-party
registrations have little weight in determining the strength of a mark because they
do not establish that the registered marks identified therein are in actual use in the
marketplace or that customers are accustomed to seeing them. See AMF Inc. v. Am.

17 December 17, 2012 Response to Office Action, TSDR at 47-164.
18 December 17, 2012 Response to Office Action. See, e.g., Reg. No. 4007661 for HINT OF
LACE for women’s undergarments (TSDR at 61), Reg. No. 3134345 for HINT OF SKIN for
bras and panties (TSDR at 81), Reg. No. 3236949 for A HINT OF MINT for cigarettes
(TSDR at 85), and Reg. No. 3880392 for HINT OF SALT for crackers (TSDR at 123).
19 December 17, 2012 Response to Office Action. See, e.g., Reg. No. 3979347 for HINT for lip
balms (TSDR at 71), 3184565 for HINT for water (TSDR at 79), Reg. No. 2908686 for THE
HINT for performances by a live musical group (TSDR at 99), and Reg. No. 3955862 for
HINT for luminary (TSDR at 107).
Serial No. 85587635
- 14 -
Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Max
Capital Group Ltd., 90 USPQ2d 1243, 1248 (TTAB 2010). In short, none of the
third-party registrations support Applicant’s argument that Registrant’s mark is
entitled to a narrow scope of protection.
Applicant also submitted printouts from approximately ten commercial Internet
websites and two blogs featuring or relating to jewelry and retail jewelry stores,
where the word HINT generally is used as part of a phrase. Most of the websites
display variations of the phrase “drop a hint,” with associated forms or explanations
about how a customer can “drop,” “email” or “send” messages to encourage the
recipient of the message to purchase jewelry for the customer. For example,
Cunningham Fine Jewelry offers “Drop the Hint” Assistance, a “Professional
Proposal Activation Services” that instructs shoppers to “[f]ollow the steps above to
“Drop The Hint” and get him to “Pop The ?”.20 Similarly, Danforth Diamond
instructs shoppers to “[f]ill out the ‘Drop the Hint’ form at the right to send your
favorite Danforth Diamond engagement rings or other jewelry to your significant
other’s inbox.”21 And Desert Diamonds invites shoppers to “Drop a Hint” by “fill[ing]
out the form below to drop your hint about this product.”22

20 March 6, 2014 Request for Reconsideration, TSDR at 41 .
21 March 6, 2014 Request for Reconsideration, TSDR at 51 .
22 March 6, 2014 Request for Reconsideration, TSDR at 53 .
Serial No. 85587635
- 15 -
Hamilton Jewelers offers a similar program under the moniker “THE HINT
PROGRAM,” which is “[m]ore than just a gift registry; we provide the advantage of
notifying the appropriate party of exactly what you would like to receive.”23
The remaining evidence comprises printouts from the Macy’s website, displaying
the phrase “Hint of Gold” for various gold-plated jewelry,24 and the Etsy websites
“Hint of Charm,” “Isette” (which displays a “Hint Diamond Ring”), and “Beth
Hemmila of Hint Jewelry.”25
While the Internet evidence demonstrates that third parties use the word “hint”
in conjunction with jewelry and retail stores, most of the uses are parts of
informational phrases that do not identify the source of the jewelry or retail jewelry
stores. In addition, the examples and information provided about the third-party
uses are limited. The probative value of this evidence also is limited because the
website printouts do not establish how many relevant customers may have
encountered the third-party uses. In particular, the printouts alone do not establish
that potential consumers have been so exposed to the term “HINT” (or “E-HINT”)
that they have become accustomed to it and look to other elements for source
identification in association with jewelry or retail store services featuring jewelry.
See Thomas, 79 USPQ2d at 1026 (stating that, “without evidence as to the extent of
third-party use, such as how long the websites have been operational or the extent
of public exposure to the sites, the probative value of this evidence is minimal.”).

23 March 6, 2014 Request for Reconsideration, TSDR at 49 .
24 March 6, 2014 Request for Reconsideration, TSDR at 32 .
25 March 6, 2014 Request for Reconsideration, TSDR at 22-23, 25-26 and 29-30, respectively
.
Serial No. 85587635
- 16 -
Moreover, even if we considered the term HINT to be weak in the context of jewelry
and jewelry stores, which we do not, in view of the highly related goods and services
and very similar marks, the cited registration would still be entitled to protection.
King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 183 USPQ 108, 109
(CCPA 1974).
We consider this du Pont factor neutral.
E. Fame
Applicant argues in its brief that the absence of evidence of strength or fame of
Registrant's mark should be treated as a factor in applicant's favor.26 However,
because this is an ex parte proceeding, we would not expect the Examining Attorney
to submit evidence of the commercial strength or fame of the cited mark. See
Thomas, 79 USPQ2d at 1027 n.11. Moreover, “[a]lthough we have previously held
that the fame of a registered mark is relevant to likelihood of confusion, ... we
decline to establish the converse rule that likelihood of confusion is precluded by a
registered mark’s not being famous.” Majestic, 65 USPQ2d at 1205 (citation
omitted). This du Pont factor, as is normally the case in ex parte proceedings, must
be treated as neutral. See Davey, 92 USPQ2d at 1204 (citing Thomas, 79 USPQ2d at
1027 n.11).
II. Conclusion
After considering all of the evidence properly of record, including any evidence
not specifically discussed herein, and arguments pertaining to the du Pont

26 9 TTABVUE 23.
Serial No. 85587635
- 17 -
likelihood of confusion factors, we conclude that prospective purchasers familiar
with the registered mark E-HINT for “retail jewelry store services” would be likely
to believe, upon encountering Applicant’s very similar mark HINT for “jewelry; key
chains as jewelry,” that such goods emanate from, or are sponsored by or affiliated
with the same source.
Decision: The refusal to register Applicant’s mark HINT is affirmed.