Taylor Tate, Inc.

Trademark Trial and Appeal Board

Dec 1, 2006

No. 78463524 (T.T.A.B. Dec. 1, 2006)

Mailed: December 1, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Taylor Tate, Inc.
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Serial No. 78463524
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Brett A. North of Garvey, Smith, Nehrbass & North, L.L.C.
for Taylor Tate, Inc.

Ingrid C. Eulin, Trademark Examining Attorney, Law Office
111 (Craig D. Taylor, Managing Attorney).
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Before Seeherman, Kuhlke and Zervas, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Taylor Tate, Inc. has filed an application to register
the mark for services ultimately identified as “spa
services namely, providing massages, facials, body
treatments, manicures, pedicures, waxing, and microderm
abrasions” in International Class 44.1 In response to a

1 Application Serial No. 78463524, filed August 6, 2004, alleging
a bona fide intention to use the mark in commerce under Section
1(b) of the Trademark Act. 15 U.S.C. §1051(b).

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Serial No. 78463524
2
request from the examining attorney, applicant disclaimed
the wording DAY SPA & SHOP.
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used with its identified services,
so resembles the registered mark for “hair care
preparations, hair conditioners, hair moisturizers, hair
relaxers, hair shampoos, hair gel, hair lotions, hair
pomades, hair curl activators, hair waving lotions, face
cream, body cream, body oil, skin cleansing cream, fade
cream, vanishing cream, disinfectant soap, deodorant soap,
skin soap, toilet soap, liquid soap, after shave cream,
after shave lotion, sun tan lotion, sun block preparations,
sun block cream, liquid detergent, deodorants, anti-
perspirant” in International Class 3, as to be likely to
cause confusion, mistake or deception.2
When the refusal was made final, applicant appealed
and briefs have been filed. We affirm the refusal to
register.
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
Serial No. 78463524
3
1357, 177 USPQ 563 (CCPA 1973). See also, 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 and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
We turn first to a consideration of the goods and
services identified in the application and the cited
registration. It is well settled that goods and services
need not be similar or competitive in nature to support a
finding of likelihood of confusion. The question is not
whether purchasers can differentiate the goods and services
themselves, but rather whether purchasers are likely to
confuse the source of the goods and services. See Helene
Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). Further, we must consider the cited
registrant’s goods as they are described in the
registration and we cannot read limitations into those
goods. See Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom

2 Registration No. 2494050, issued October 2, 2001.
Serial No. 78463524
4
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1987). If the cited
registration describes goods broadly, and there is no
limitation as to the nature, type, channels of trade or
class of purchasers, it is presumed that the registration
encompasses all goods of the type described, that they move
in all channels of trade normal for these goods, and that
they are available to all classes of purchasers for the
described goods. See In re Linkvest S.A., 24 USPQ2d 1716
(TTAB 1992). Finally, it is well established that goods
and services may be related. See In re United Service
Distributors, Inc., 229 USPQ 237 (TTAB 1986) (mark for
distributorship services in the field of health and beauty
aids held likely to be confused with mark for skin cream).
The examining attorney argues that applicant’s
services and registrant’s goods are complementary and
registrant’s goods could be sold along with or as part of
applicant’s services. The examining attorney has presented
evidence in support of her position that applicant’s spa
services and registrant’s hair and skin care products are
related in the form of third-party registrations showing
that entities have registered a single mark for both spa
services and hair and/or skin care products. See, e.g.,
Reg. No. 2875262 for EGYPTIAN REVIVAL for, inter alia,
Serial No. 78463524
5
providing day spa services, namely hair salon services,
skin care services, massages, manicures, pedicures, and
hand and body cleansers, moisturizers, anti-aging creams,
lotions, creams, lotions, sun block soaps, shampoos,
conditioners, and hairspray; Reg. No. 2674775 for JON’RIC
for, inter alia, beauty salons and spas, and shampoo,
conditioner, hair gel, hair spray and mousse; Reg. No.
2898731 for A NATURAL DIFFERENCE for, inter alia, skin care
salons, health spa services, namely cosmetic body care
services, and facial lotions, body lotions, skin cleansers,
and soap; Reg. No. 2719430 for LIVING AYURVEDA for skin
moisturizers, massage oils, skin masks, facial cleansers,
shampoos, soaps, and skin creams, and health spa services,
namely, cosmetic body care services featuring facials, body
treatments, hand/foot treatments, scalp treatments; and
Reg. No. 2942871 for THE SPA TORREY PINES (and design) for
beauty salon services and health spa services, namely
cosmetic body care services consisting of massages,
manicures and pedicures, and hair shampoo, hair
conditioner, day cream, body cream, skin care facial toner,
and sunscreen. Third-party registrations which
individually cover a number of different items, and which
are based on use in commerce, serve to suggest that the
listed goods and/or services are of a type which may
Serial No. 78463524
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emanate from a single source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993). Applicant has presented
no argument or evidence to dispute this contention.
In view of the above, we find that applicant’s spa
services are related to registrant’s hair and skin care
products and the du Pont factor of the similarity of the
goods and services weighs in favor of a finding of
likelihood of confusion. In addition, because the
identification of goods in the registration is not limited
to any specific channels of trade, we presume an overlap in
trade channels, at least to the extent that an ordinary
channel of trade for registrant’s types of goods includes
spas, and that the goods and services would be offered to
all normal classes of purchasers.
We turn now to the first du Pont factor, i.e., whether
applicant’s mark and registrant’s mark
are similar or dissimilar when compared in their entireties
in terms of appearance, sound, connotation and commercial
impression. The analysis is not whether the marks can be
distinguished when compared side-by-side. Rather, we must
determine whether the marks are sufficiently similar that
there is a likelihood of confusion as to source and, in
making this determination, we must consider the
Serial No. 78463524
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recollection of the average purchaser who normally retains
a general, rather than specific, impression of trademarks.
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
We agree with the examining attorney that the word
LOVEJOY in applicant’s mark dominates over the descriptive
wording DAY SPA & SHOP and the minimal decorative design
elements. Applicant argues that the mark as a whole
“should be reviewed and not a parsing of the mark into
pieces.” While it is correct that we must view the mark in
its entirety, Kangol Ltd. v. KangaROOS U.S.A. Inc., 974
F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992), it is also well
settled that “there is nothing improper in stating that,
for rational reasons, more or less weight has been given to
a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.” In re National Data Corp., 753 F.2d 1056,
1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985).
We find that the word LOVEJOY in applicant’s mark is
similar in sound and appearance to registrant’s mark
LOVJOI. Applicant argues that “‘LOV’ does not sound like
‘LOVE’ as the ‘O’ in ‘LOVE’ is pronounced as ‘luv’ (having
a short ‘U’ sound) and the ‘O’ in ‘LOV’ has a short ‘O’
Serial No. 78463524
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vowel sound...[and] ‘JOY’ does not sound like ‘JOI.’” Br.
p. 2. While it is possible that LOVJOI could be pronounced
differently from LOVEJOY, there is no correct pronunciation
of a non-standard term. See Kabushiki Kaisha Hattori
Tokeiten v. Scuotto, 228 USPQ 461 (TTAB 1985). Moreover,
the examining attorney submitted excerpts from various
newspapers retrieved from an electronic database where the
word “love” is written as “lov,” indicating that consumers
are accustomed to pronouncing “lov” as “love.” See, e.g.,
“Bears schedule separates fans from realists,” Chicago
Tribune (April 17, 2004) (“As a Bears fan for life, I want
Lovie Smith to go 12-4, not 4-12. Love to luv ya, Lov.”);
“Skywriter spells religious messages over region,” The
News-Press (Fort Myers, FL) (August 26, 2003) (“Jesus Loves
You, Love God and Lov U Jesus.”); and “Watering cases pour
into courts,” St. Petersburg Times (June 15, 2001) (Every
Friday, water violators congregate in Courtroom 14 for
‘LoveCourt’–as in LOV, or local ordinance violations.”)
Here, because LOVJOI can be pronounced as “LOVEJOY,” the
shared terms LOVEJOY and LOVJOI must be considered
identical in sound. RE/MAX of America, Inc. v. Realty
Mart, Inc., 207 USPQ 960, 964 (TTAB 1980). In addition,
the terms, depicted in similar fonts, are very similar in
appearance, only differing by the addition of the “E” and
Serial No. 78463524
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the substitution of a “Y” for an “I” in applicant’s mark.
As to connotation, at a minimum, when pronounced both evoke
the words LOVE and JOY.
We find that the overall commercial impression of the
marks is similar in view of the similarity of the words
LOVEJOY and LOVJOI and that the descriptive wording and
minor design elements in applicant’s mark are not
sufficient to distinguish the marks in the mind of the
consumer who, as noted above, retains only a general
impression of trademarks. Thus, the factor of the
similarity of the marks also favors a finding of likelihood
of confusion.
In conclusion, we find that because the marks are
similar, the goods and services are related, and the
channels of trade overlap, confusion is likely between
applicant’s mark and the cited registration.
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.