Truth Skin Care

Trademark Trial and Appeal Board

Sep 4, 2013

No. 85713365 (T.T.A.B. Sep. 4, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: September 4, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Truth Skin Care
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Serial No. 85713365
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Truth Skin Care, pro se.

Brendan McCauley, Trademark Examining Attorney, Law Office 114 (K. Margaret
Le, Managing Attorney).
_____

Before Kuhlke, Bergsman and Kuczma, Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Truth Skin Care, identified as a sole proprietorship (“applicant”), appeals
from the final refusals to register the following mark in standard character format:

for the following goods and services as amended:
After sun creams; After-sun gels; After-sun lotions; After-
sun milks; After-sun oils; Age retardant gel; Age
retardant lotion; Age spot reducing creams; Anti-aging
cleanser; Anti-aging cream; Anti-aging cream containing
a retinoic ingredient not for medical purposes; Anti-aging
creams; Anti-aging moisturizer; Anti-aging toner; Anti-
freckle creams; Anti-wrinkle cream; Anti-wrinkle creams;
Astringents for cosmetic purposes; Bath oils for cosmetic
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purposes; Bathing lotions; Beauty creams; Beauty creams
for body care; Beauty gels; Beauty lotions; Beauty masks;
Beauty milks; Beauty serums; Beauty soap; Body and
beauty care cosmetics; Body butter; Body cream; Body
cream soap; Body creams; Body lotions; Body mask cream;
Body mask lotion; Body mask powder; Body masks; Body
milk; Body oils; Body powder; Body scrub; Cleansing
creams; Cleansing milk for cosmetic purposes; Cloths or
tissues impregnated with a skin cleanser; Cocoa butter for
cosmetic purposes; Cold creams; Concealers for face, skin
and body, Cosmetic creams for skin care; Cosmetic masks;
Cosmetic hand creams; Cosmetic nourishing creams;
Cosmetic milks; Cosmetic oils; Cosmetic oils for the
epidermis; Cosmetic olive oil for the face and body;
Cosmetic preparations for skin renewal; Cosmetic
preparations against sunburn; Cosmetic preparations for
skin care; Cosmetic preparations for protecting the skin
from the sun's rays; Cosmetic preparations, namely,
firming lotions; Cosmetic preparations; Cosmetic skin
fresheners; Cosmetic sunscreen preparations; Cosmetic
products in the form of aerosols for skincare; Cosmetic
products in the form of aerosols for skin care; Cosmetics;
Cosmetics and cosmetic preparations; Cosmetics and
make-up; Creamy foundation; Depilatory wax; Exfoliants
for the skin of the face and/or body; Exfoliating pad
containing a glycolic ingredient not for medical purposes;
Eye cream; Eye gels; Eye lotions; Face and body beauty
creams; Face and body creams; Face and body lotions;
Face and body milk; Face creams; Face creams and
cleansers containing benzoyl peroxide for cosmetic
purposes; Face creams for cosmetic use; Face milk and
lotions; Facial beauty masks; Facial cleaning preparation,
namely, salicylic acne cleanser not for medical purposes;
Facial cleansers; Facial concealer; Facial cream; Facial
creams; Facial emulsions; Facial lotion; Facial make-up;
Facial masks; Facial moisturizer with SPF; Facial scrubs;
Facial washes; Fair complexion cream; Foundation make-
up; Foundations; Hand cream; Hand creams; Hand
lotions; Hand scrubs; Hand soaps; Indoor sun tanning
preparations; Lip balm; Lip cream; Lotions for cellulite
reduction; Lotions for face and body care; Lotions for
cosmetic purposes; Make up foundations; Make up
removing preparations; Make-up for the face and body;
Non-medicated anti-aging serum; Non-medicated acne
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treatment preparations; Non-medicated skin care
preparations; Night cream; Non-medicated hair treatment
preparations for cosmetic purposes; Non-medicated herbal
body care products, namely, body oils, salves, and lip
balms; Non-medicated lip care preparations; Non-
medicated ointments for the prevention and treatment of
sunburn; Non-medicated preparations all for the care of
skin, hair and scalp; Non-medicated skin care
preparations, namely, creams, lotions, gels, toners,
cleaners and peels; Non-medicated skin care creams and
lotions; Non-medicated skin creams; Non-medicated
stimulating lotions for the skin; Non-medicated skin
toners; Oils for cosmetic purposes; Powder for make-up;
Pressed face powder; Pre-moistened cosmetic wipes;
Pumice stones for personal use; Skin abrasive
preparations; Skin and body topical lotions, creams and
oils for cosmetic use; Skin bronzer; Skin care
preparations, namely, chemical peels for skin; Skin care
preparations, namely, fruit acid peels for skin; Skin care
preparations, namely, body balm; Skin care preparations,
namely, skin peels; Skin care products, namely, non-
medicated skin serum; Skin clarifiers; Skin cleansers;
Skin creams; Skin emollients; Skin fresheners; Skin gels
for accelerating, enhancing or extending tans; Skin
lighteners; Skin lotions; Skin masks; Skin moisturizer;
Skin soap; Skin texturizers; Skin toners; Sun screen
preparations; Tissues impregnated with cosmetic lotions;
Topical skin sprays for cosmetic purposes; Wrinkle
removing skin care preparations; Wrinkle resistant
cream; Wrinkle-minimizing cosmetic preparations for
topical facial use in Class 3; and
Health spa services for health and wellness of the body
and spirit, namely, providing massage, facial and body
treatment services, cosmetic body care services; Health
spa services, namely, laser treatments for acne,
rejuvenation, scars, tattoo removal and for facials and
massage; Beauty spa services, namely, cosmetic body
care; Health spa services for health and wellness of the
mind, body and spirit offered in or from a remote, mobile
or temporary on-site location; Health spa services for
health and wellness of the body and spirit; Health spa
services, namely, body wraps, mud treatments, seaweed
treatments, hydrotherapy baths, and body scrubs; Health
spa services, namely, cosmetic body care services; Facial
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treatment services, namely, cosmetic peels; Beauty
consultation services in the selection and use of cosmetics,
fragrances, beauty aids, personal care products, and bath,
body and beauty products; Beauty analysis to determine
cosmetics that are best suited to particular individuals;
Beauty consultation services; Color analysis for cosmetic
purposes; Cosmetic body care services in the nature of
body wraps; Cosmetic face care services; Cosmetic
services, namely, non-permanent hair removal; Cosmetic
skin care services; Cosmetician services; Cosmetology
services; Depilatory hair removal services; Eyebrow
threading services; Laser hair removal services; Laser
and intense pulse light skin enhancement procedures;
Make-up application services; Microdermabrasion,
namely, a topical skin treatment involving abrasion of the
skin with a high-pressure flow of crystals;
Micropigmentation services; Personal hair removal
services; Permanent hair removal and reduction services;
Providing a website featuring information about health
and wellness, namely, skin care, spa services, anti-aging
and beauty; Providing information about beauty;
Providing news and information in the field of personal
beauty; Providing on-line information, news and
commentary in the field of health and wellness relating to
skin care, beauty, skin treatments, anti-aging; Providing
on-site beauty services, namely, hair styling and make-up
application services; Salon services, namely, facials,
manicures and massages that are provided in a trailer
outfitted with chair, table and sink accessories; Services
of a make-up artist; Skin care salons; Skin tanning
service for humans for cosmetic purposes in Class 44.1
The examining attorney issued a final refusal to register the mark pursuant
to Section 2(d) of the Trademark Act, 15 U.S.C. § 2(d), citing the following
previously-registered mark as a bar to registration:
Registration No. 39539032
Mark: TRUTH (standard character)

1 Application Serial No. 85713365 filed August 27, 2012, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a); “SKIN CARE” has been disclaimed.
2 Registration No. 3953903 issued on the Principal Register on May 3, 2011.
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For: Beauty creams for body care; Body and beauty care cosmetics;
Cosmetic creams; Cosmetic creams for skin care; Cosmetic facial
blotting papers; Cosmetic masks; Cosmetic oils; Cosmetic pencils;
Cosmetic preparations for body care; Cosmetic preparations for eye
lashes; Cosmetic rouges; Cosmetic soaps; Cosmetics and cosmetic
preparations; Cosmetics and make-up; Hair care lotions; Henna for
cosmetic purposes; Lotions for cosmetic purposes; Lotions for face and
body care; Mineral powder for use in cosmetic body wrap applications;
Moisturizing preparations for the skin; Nail care preparations; Pencils
for cosmetic purposes; Private label cosmetics; Shea butter for cosmetic
purposes; Skin cleansers; Skin creams; Skin emollients; Skin
fresheners; Skin lightening creams; Skin moisturizer; Skin moisturizer
masks; Skin soap; Soaps for body care; Suntan oils for cosmetic
purposes; Tanning and after-sun milks, gels and oils in Class 3

Owner: Maureen L. Laniak DBA Imago Dei.
In addition, the examining attorney refused registration based on applicant’s
failure to respond to a request for information. After the refusals were made final,
applicant filed a request for reconsideration which was denied. Subsequently,
applicant timely filed a notice of appeal and, applicant and the examining attorney
have filed briefs. For the reasons set forth below, the refusals to register are
affirmed.
A. Requirement for Information Related to Applicant’s Entity Status
We first consider the refusal based on applicant’s failure to respond to the
examining attorney’s request for information. In the first Office Action, the
examining attorney required applicant to provide information pursuant to TMEP
§ 803.03(a) (October 2012) regarding the name and national citizenship of the
individual person who was identified in the application as “Truth Skin Care,” a sole
proprietorship. Alternatively, if applicant is instead an individual person doing
business under an assumed business name, the examining attorney requested that
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applicant provide the name of the individual and his/her country of citizenship
pursuant to TMEP §§ 803.02(a) and 803.04. In its response to the Office Action,
applicant failed to address the requirement. The requirement was made final in the
second Office Action, and applicant failed to address the requirement in its Request
for Reconsideration.3 In the denial of the Request for Reconsideration, the
requirement was maintained and continued to be final. Applicant’s Appeal Brief
did not address the requirement. The Examining Attorney’s Brief reiterated the
requirement and urges refusal of the application on this basis. Applicant has not
filed a reply brief or otherwise responded to the requirement. In short, despite
repeated requests and reminders, applicant did not comply with or even
acknowledge the examining attorney’s requirement requesting information.4
Under Trademark Rule 2.61(b), 37 C.F.R. § 2.61(b), “[t]he examiner may
require the applicant to furnish such information and exhibits as may be reasonably
necessary to the proper examination of the application.” If an applicant fails to
comply with the examining attorney’s requirement under Trademark Rule 2.61(b),
registration of applicant's mark may be refused on that basis. See In re DTI

3 We note applicant’s Request for Reconsideration contains the statement “’Truth Skin
Care’ owned by Michelle Calvarese, on the other hand, has been in the specific business of
providing . . . .” Even if this statement is construed as a statement that Michelle Calvarese
is the name of the sole proprietor identified in the application, the information regarding
her citizenship remains lacking.
4 In making the requirement for information final, the examining attorney cited to 37
C.F.R. § 2.64(a) which provides that “insistence upon a requirement may be stated to be
final.” However, the basis for this type of refusal is primarily grounded on 37 C.F.R.
§ 2.61(b) which provides that the Office may require the applicant to furnish such
information as may be reasonably necessary to the proper examination of the application
which in this case relates to the requirements set forth in 37 C.F.R. §§ 2.32(a)(2) and (a)(3),
that the name and citizenship of the applicant be provided. The better practice would be
for the examining attorney to cite to 37 C.F.R. § 2.61(b) as the basis for the refusal.
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Partnership LLP, 67 USPQ2d 1699, 1701 (TTAB 2003). In view thereof, the refusal
to register based on applicant’s failure to comply with the requirement to provide
the information requested by the examining attorney is affirmed. See In re AOP
LLC, 107 USPQ2d 1644, 1651 (TTAB 2013) (failure to comply with a request for
information is grounds for refusal of registration).
B. Likelihood of Confusion
Our determination under § 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. 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 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 similarities between
the goods and services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). We have considered these and any other
du Pont factors on which applicant and the examining attorney have submitted
evidence and argument.
(1) Similarity of Goods, Channels of Trade and Classes of Consumers
We first consider the du Pont factor involving the similarity or dissimilarity
of applicant’s goods in relation to the goods in the cited registration and their
respective channels of trade and classes of consumers.
The goods in the cited registration and applicant’s application consist of
various cosmetics, skin and body care products, including the following identical
products: Beauty creams for body care; Body and beauty care cosmetics; Cosmetic
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creams for skin care; Cosmetics and cosmetic preparations; Skin cleansers; Skin
creams; Skin emollients; Skin fresheners; and Skin soap. Therefore, applicant’s
goods in Class 3 are identical in part to the goods in the cited Registration.
Confusion is also likely between applicant’s health spa, beauty and body care
services in Class 44 and the goods in the cited registration. Applicant’s services
including “Beauty consultation services in the selection and use of cosmetics,
fragrances, beauty aids, personal care products, and bath, body and beauty
products; Beauty analysis to determine cosmetics that are best suited to particular
individuals; Beauty consultation services,” are directly related to the cosmetic and
body care goods recited in the cited registration. The evidence submitted by the
examining attorney demonstrates that the goods in the cited registration and
applicant’s services are of a kind which are likely to emanate from a common
commercial source.5
It is well recognized that confusion in trade is likely to occur from the use of
similar or the same marks for goods on the one hand and for services which deal
with or are related to those goods on the other. Steelcase Inc. v. Steelcare Inc., 219
USPQ 433, 435 (TTAB 1983). See also Safety-Kleen Corp. v. Dresser Industries, Inc.,
518 F.2d 1399, 186 USPQ 476, 480 (CCPA 1975).
Applicant argues that the distinction between applicant’s goods and services
and the goods in the cited registration is more substantial because the business of

5 See attachments to December 21, 2012 Office Action consisting of portions of websites
from Red Door Spa, Canyon Ranch, Babor, Bliss and Sachs Day Spa, offering spa services
and beauty and skin care products under the same brand names.
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the cited registrant “appears to be a religious ministry involved in some type of
multi-level marketing” while applicant’s business “is not religious in nature and
involves direct sales to consumers both online and in a store front.”6 It is well-
settled that the issue of likelihood of confusion between applied-for and registered
marks must be determined on the basis of the goods and services as they are
identified in the involved application and registrations. Paula Payne Products Co.
v. Johnson Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973); In re
Accelerate s.a.l., 101 USPQ2d 2047, 2050 (TTAB 2012). Because neither applicant’s
application nor the cited registration contain any limitations with respect to the
manner in which the goods and services recited therein are sold, applicant’s
evidence and argument as to the nature of the business of the cited registrant is not
relevant.
In determining the similarity of applicant’s and registrant’s goods and
services, it is sufficient if likelihood of confusion for each Class of goods and services
is established for any item encompassed by the identification of goods for that Class.
See In re Wacker Neuson SE, 97 USPQ2d 1408, 1409 (TTAB 2010) citing Tuxedo
Monopoly, Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981). In view of the overlapping goods and the relatedness of the
nonoverlapping goods in applicant’s application and the goods in the cited
registration, consumers encountering applicant’s goods and the goods in the cited
registrations sold under similar marks are likely to believe the goods emanate from

6 Applicant Appeal Brief p. 2.
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the same source. Additionally, the goods in the cited registration are related to
applicant’s services in that they are the type of goods that are offered in connection
with applicant’s services in Class 44.
Given that the goods and services are legally identical and otherwise so
closely related and there is no limitation as to trade channels or classes of
purchasers in the description of goods and services in either the application or the
cited registration, we may presume that the goods travel in the same channels of
trade, and are available to the same classes of purchasers. See In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion);
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005
(Fed. Cir. 2002); American Lebanese Syrian Associated Charities Inc. v. Child
Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011); and In re Smith &
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994). 1, 1532 (TTAB 1994).
In view of the legally identical and highly related nature of the goods and
services set forth in the application and cited registration, and the similar trade
channels and customers, the du Pont factors of the similarity of the goods, trade
channels and customers favor a finding of likelihood of confusion.
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(2) Similarity of the Marks
We now turn to consider the du Pont factor focusing with the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, and
commercial impression. du Pont, 177 USPQ at 567.
When considering the similarity of the marks, we are mindful that where, as
here, the goods and services are legally identical and otherwise closely related, the
degree of similarity necessary to find likelihood of confusion need not be as great as
where there is a recognizable disparity between the goods and services. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB
2007); Schering-Plough HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d
1323, 1325 (TTAB 2007).
Further, the test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of overall commercial impression so that confusion as to
the source of the goods or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992).
To the extent applicant’s TRUTH SKIN CARE mark and the cited TRUTH
mark both contain the word TRUTH, when comparing the marks in their entireties,
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they are similar in sound and appearance. This is particularly so in view of the fact
that consumers are generally more inclined to focus on the first word in any
trademark or service mark. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005); see also Presto Products, Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“it is often the first part of mark which is most likely to be
impressed upon the mind of a purchaser and remembered” when making
purchasing decisions).
Turning to the meaning and commercial impression of the marks, the word
TRUTH as used in both applicant’s mark and the cited mark imparts the same
arbitrary meaning; it does not describe or connote anything about the goods and
services of either applicant or the cited registrant. Moreover, the addition of the
words SKIN CARE in applicant’s mark does not alter the similar commercial
impressions of the marks. The words SKIN CARE when used in connection with
applicant’s goods and services possess a descriptive connotation as evidenced by
applicant’s disclaimer of these words.7 Because disclaimed matter is typically less
significant or less dominant when comparing marks, the word TRUTH is the
dominant feature of both marks. See In re Dixie Restaurants, 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 we are mindful that marks

7 The descriptiveness of the words SKIN CARE is also supported by the definition of “skin
care” submitted by the examining attorney: “the cleansing, massaging, moisturizing, etc.,
of the skin, especially the face or hands.” From http://dictionary.reference.
Com/browse/skin+care?r=66 attached to December 12, 2012 Office Action.
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are to be compared in their entireties, one feature of a mark may be more
significant or dominant in creating a commercial impression such as is the case
with the word TRUTH in applicant’s TRUTH SKIN CARE mark. See Viterra, 101
USPQ2d at 1908; Nat’l Data, 224 USPQ at 751. Both marks begin with the
dominant word TRUTH and applicant’s mark includes descriptive wording that
connotes its goods and services. Thus, the marks have similar appearances, sound,
meanings and commercial impressions such that the addition of the words SKIN
CARE in applicant’s mark does not avoid the likelihood of confusion between the
marks.
Although the issue of likelihood of confusion must be judged on the basis of
the facts and context of each case presented to the Board, likelihood of confusion has
frequently been found where the entirety of one mark is incorporated within
another. See In re El Torito Restaurants, Inc., 9 USPQ2d 2002 (TTAB 1988)
(MACHO COMBO likely to cause confusion with registered MACHO mark); In re
Christian Dior, S.A., 225 USPQ 533, 535 (TTAB 1985) (addition of house mark in
LE CACHET De DIOR does not avoid likelihood of confusion with registered
CACHET mark); In re C.F. Hathaway Co., 190 USPQ 343, 345 (TTAB 1976)
(HATHAWAY GOLF CLASSIC for knitted sport shirts likely to cause confusion
with registered GOLF CLASSIC mark for men’s hats); and La Maur, Inc. v. Matney,
167 USPQ 559 (TTAB 1970) (applicant’s “ITALIAN STYLE” mark similar to
registered “STYLE” mark).
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Applicant’s argument in the Request for Reconsideration that the image,
connotation and presentation of the cited mark as used is so vastly different from
applicant’s “Truth Skin Care” mark that it is unlikely any reasonable consumer
would become confused does not avoid a likelihood of confusion. Marks that are in
standard characters, such as applicant’s mark and the cited mark, may be displayed
in any lettering style; the rights reside in the wording or other literal elements and
not in any particular display. In re White Rock Distilleries Inc., 92 USPQ2d 1282,
1284 (TTAB 2009). Registrant is entitled to all depictions of her standard character
mark regardless of the font style, size, or color. Viterra, 101 USPQ2d at 1908;
Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1259 (Fed. Cir. 2011) and In re Strategic Partners Inc., 102 USPQ2d 1397, 1399
(TTAB 2012). Applicant will not avoid a likelihood of confusion with the cited
standard character mark because the owner of the cited registration has the right to
present her mark in a manner of display similar to any that may be used by
applicant. Thus, the registrant may display its mark in a manner that incorporates
the word “Skin,” as shown below, which highlights the similarity of the marks:
TRUTH
Skin Cream

In view of the foregoing, the marks are similar in terms of appearance, sound,
meaning and commercial impression.
(3) Priority
Lastly, applicant’s argument and evidence supporting applicant’s contention
that the TRUTH SKIN CARE mark has been used prior to the use of the cited mark
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are without merit. During ex parte prosecution, an applicant will not be heard on
matters, such as applicant’s prior use of the mark, that constitute a collateral attack
on the cited registration. Therefore, the question of priority of use is not germane to
applicant’s right to register in this ex parte appeal. In re Calgon Corp., 435 F.2d
596, 168 USPQ 278, 280 (CCPA 1971).
(4) Balancing the factors
In view of the facts that the marks are similar, the goods and services are
legally identical and otherwise closely related and the presumption that the goods
and services move in the same channels of trade and are sold to the same classes of
consumers, we find that applicant’s mark TRUTH SKIN CARE for its skin related
goods and services is likely to cause confusion with the mark TRUTH skin creams
and cosmetics.
Decision: The refusals to register applicant’s mark are affirmed.