Tucker’s Trinkets & Treasures LLC

Trademark Trial and Appeal Board

Aug 26, 2019

87627270 (T.T.A.B. Aug. 26, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 26, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Tucker’s Trinkets & Treasures LLC
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Serial No. 87627270
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Thomas J. Milhill of Owen, Gleaton, Egan, Jones & Sweeney, LLP for
Tucker’s Trinkets & Treasures LLC
Eric Sable, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
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Before Wellington, Kuczma and Lynch,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Tucker’s Trinkets & Treasures LLC (“Applicant”) seeks registration of the mark
TUCKER’S TRINKETS & TREASURES (in standard characters, TRINKETS
disclaimed) on the Principal Register for “jewelry charms” in International Class 14.1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark

1 Application Serial No. 87627270 was filed on September 28, 2017, and is based on
Applicant’s claim of a first use of the mark in commerce on June 1, 2005.
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TUCKER’S FINE JEWELRY & GIFT GALLERY (in standard characters, FINE
JEWELRY & GIFT disclaimed) for “jewelry” in International Class 14.2 The cited
mark is registered under Section 2(f) of the Act based a claim of acquired
distinctiveness of the mark as a whole.
After the refusal was made final, Applicant requested reconsideration and
appealed to this Board. Reconsideration was denied, proceedings resumed, and the
appeal is briefed. We affirm the refusal to register.
I. Applicable Law
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., 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. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944, 1945-
46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes
to the cumulative effect of differences in the essential characteristics of the goods and
differences in the marks.”).

2 Registration No. 4644080 issued on November 25, 2014.
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A. Legal Identity (or Close Relationship) of Goods and Channels of Trade
We first consider the second and third du Pont factors, the similarity of the goods
and their channels of trade. We must make our determinations under these factors
based on the goods as they are identified in the application and cited registration. See
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); In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
We agree with the Examining Attorney that Registrant’s identification of goods,
described broadly as “jewelry,” encompasses Applicant’s “jewelry charms” and the
goods are thus legally identical.
Applicant argues that “the purpose” of its “more limited” identification is “to limit
the applicant’s mark to the small, inexpensive charms it actually sells.”3 However, as
the evidence demonstrates, the wording “jewelry charms” does not necessarily
connote inexpensive items and may include goods with price points approaching a
thousand dollars.4 In any event, Registrant’s jewelry is not limited to any particular
price point and includes less expensive jewelry items that are made of non-precious
materials such as plastic.5 See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134,

3 7 TTABVUE 7.
4 See, e.g., evidence attached to Office Action (Reconsideration Letter) issued on January 23,
2019, showing “jewelry charms” with prices ranging from $320 to $935 (5 TTABVUE 39).
5 “Jewelry” is defined as “ornamental pieces (such as rings, necklaces, earrings, and bracelets)
that are made of materials which may or may not be precious (such as gold, silver, glass, and
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1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture’”).
Given the legal identity of the goods, and the lack of restrictions or limitations in
the application and the cited registration as to channels of trade or classes of
consumers, we must presume that the channels of trade and classes of purchasers
are also the same. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1518-19
(TTAB 2016); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (finding Board entitled to rely on this legal presumption in determining
likelihood of confusion). That is, we must consider that Applicant’s jewelry charms,
bearing the mark TUCKER’S TRINKETS & TREASURES, may be encountered in
the same retail outlets as Registrant’s jewelry sold under the mark TUCKER'S FINE
JEWELRY & GIFT GALLERY.
Even if we did not find that the goods are legally identical, the evidence submitted
by the Examining Attorney demonstrates that various types of “jewelry” and “jewelry
charms” are very closely related because they are commonly sold under the same
mark, in the same channels of trade, and offered to the same classes of consumers.6
The Examining Attorney submitted internet printouts from a variety third-party

plastic), are often set with genuine or imitation gems, and are worn for personal adornment.”
Merriam-Webster.com. 2019; https://www.merriam-webster.com (18 May 2019). 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 regular fixed editions. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
6 Evidence attached to Office Action (Reconsideration Letter) issued on January 23, 2019.
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retail jewelry websites displaying jewelry and jewelry charms for sale under the same
marks, including: Tiffany, David Yurman, Brighton, Pandora, Alex and Ani, ASHA,
Temple St. Clair, Konstantino, Jane Basch Designs, and Nashelle.7
Accordingly, the du Pont factors of the similarity of the goods and channels of
trade weigh heavily in favor of likelihood of confusion.
B. The Similarity of the Marks
Under this factor, we compare Applicant’s mark TUCKER’S TRINKETS &
TREASURES and the cited mark TUCKER’S FINE JEWELRY & GIFT GALLERY
“in their entireties as to appearance, sound, connotation and commercial impression.”
Viterra, 101 USPQ2d at 1908 (quoting du Pont, 177 USPQ at 567); see also Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014). “The marks ‘must be considered ... in light of the fallibility of memory’
and ‘not on the basis of side-by-side comparison.”’ In re St. Helena Hosp., 113 USPQ2d
at 1085 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). The proper focus is on the recollection of the
average consumer, who retains a general rather than specific impression of the
marks. In re FabFitFun, Inc., 127 USPQ2d 1670, 1675 (TTAB 2018). Under actual
marketing conditions, consumers do not necessarily have the luxury of making side-

7 5 TTABVUE 8-47.
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by-side comparisons between marks, and must rely upon their imperfect
recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259 (TTAB
1980).
We also keep in mind that where, as here, the goods are legally
identical, less similarity between the marks is needed for us to find a likelihood of
confusion. See, e.g., Viterra, 101 USPQ2d at 1908; Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (“When
marks would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.”).
The involved marks are very similar because both begin with the same possessive
name, TUCKER’S, followed by wording that is either descriptive or heavily
suggestive of the involved goods. Inasmuch as TUCKER’S appears first in both marks
and is more distinctive, consumers are likely to focus on this name to refer to the
source of the goods. Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (first word in a mark is “most likely to be impressed upon the mind of a
purchaser and remembered.”). The fact that the possessive form is in use in both
marks strongly suggests to consumers that the goods come from a person with the
name “Tucker.” Although Applicant argues that “Tucker” is a “common surname,”
there is no evidence showing it being used in connection with jewelry by others.
Indeed, on this record, we must assume the possibility that Applicant and Registrant
are the only ones doing so. Furthermore, in this regard, we note again that the
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unchallenged registration issued under Section 2(f) based on claim that the mark has
acquired distinctiveness.
Applicant argues that marks have different connotations because the term
TRINKETS in its mark “connotes small, inexpensive items,” whereas the wording
FINE JEWELRY in Registrant’s mark “gives the consumer the impression of
valuable gemstones and high-quality jewelry pieces.”8 However, Applicant’s mark
also has the wording AND TREASURES and the registered mark has the wording &
GIFT GALLERY. Thus, when viewed in their entireties, both marks may be
understood as connoting jewelry goods that cover a broad price range.
We are also not persuaded by Applicant’s argument that any alliterative element
in its mark creates an overall mark that “is designed to be used, said, and understood
as a whole”9 and this will distinguish the two marks. Rather, we conclude that even
if consumers notice an alliteration, this is insufficient to overcome the similarity of
the marks based on the dominant initial and identical term, TUCKER’S. We further
point out that both marks have a somewhat similar syntax – that is, both start with
TUCKER’S and are followed by two words connected by AND (or &) that are heavily
suggestive or descriptive of the goods being sold.
Accordingly, we find the marks to be overall similar in appearance, sound,
connotation and commercial impression. This du Pont factor supports a finding of a
likelihood of confusion.

8 4 TTABVUE 3.
9 7 TTABVUE 4.
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II. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the marks are very similar, and the identified goods
are legally identical and move through the same channels of trade to the same classes
of purchasers. We therefore find that Applicant’s mark, TUCKER’S TRINKETS &
TREASURES, is likely to cause confusion with the cited mark, TUCKER’S FINE
JEWELRY & GIFT GALLERY.
Decision: The refusal to register Applicant’s mark is affirmed.