TWN Sons, LLC

Trademark Trial and Appeal Board

Dec 18, 2002

No. 76010402 (T.T.A.B. Dec. 18, 2002)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
Trademark Trial and Appeal Board
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In re TWN Sons, LLC
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Serial No. 76/010,402
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Thelma E. Naval for TWN Sons, LLC.
Jeffrey C. Coward, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_____________
Before Hanak, Bottorff and Drost, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge.
TWN Sons, LLC (applicant) seeks to register BIDET
FRENCH MILLED SOAP and design in the form shown below for
“bar soap.” The application was filed on March 27, 2000
with a claimed first use date of March 19, 2000.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
Ser. No. 76/010,402
2
that applicant’s mark, as applied to bar soap, is likely to
cause confusion with the mark BIDETTE and design,
previously registered in the form shown below for
“disposable fibrous pads impregnated with a skin cleansing
antiseptic and deodorizing preparation.” Registration No.
813,590.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated
by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.”).
Ser. No. 76/010,402
3
Marks are compared in terms of visual appearance,
pronunciation and meaning. In terms of visual appearance,
the two marks are quite distinct. The registered mark is
depicted in conventional, easy to read script. In stark
contrast, the large, non-descriptive word in applicant’s
mark (BIDET) is depicted in a unique, elongated script.
Indeed, applicant’s script is so unique that one could
easily read the initial letter in BIDET not as a “b” but
rather as an “l.” In this regard, we note that applicant
has disclaimed the descriptive wording FRENCH MILLED SOAP.
In addition, the design portions of both marks are quite
different. Applicant’s mark features a fountain of water
whereas registrant’s mark features a flower.
In terms of pronunciation, applicant’s four word mark
is clearly distinct from registrant’s one word mark. Even
if we were to focus simply on the BIDET portion of
applicant’s mark, we are of the belief that given the fact
that this is a word in the English language (albeit of
French origin), it would be pronounced in a clearly
different manner than would registrant’s arbitrary mark
BIDETTE.
Finally, in terms of meaning, applicant’s mark BIDET
is a word which means “a low, bowl-shaped bathroom fixture,
with running water, for bathing the crotch.” Webster’s New
Ser. No. 76/010,402
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World Dictionary (1996). In contrast, registrant’s mark
would be viewed as an arbitrary term, or perhaps as a
feminine first name.
In sum, we find that the marks are extremely different
in terms of visual appearance. Moreover, they also have
significant differences in terms of pronunciation and
meaning.
Turning to a consideration of the goods, in an attempt
to show that bar soaps are related to disposable fibrous
pads impregnated with a skin cleansing antiseptic and
deodorizing preparation, the Examining Attorney has made of
record third-party registrations. We have two concerns
with these third-party registrations.
First, the third-party registrations made of record by
the Examining Attorney cover anywhere from fifteen to well
over fifty types of goods. For example, third-party
Registration No. 2,516,797 covers over 100 different types
of goods including such diverse products as nail tips, eye
pencils, sun blocks and the like. It appears that the
third-party registrations made of record involve house
marks and thus are of minimal value in showing that
applicant’s bar soaps are related to registrant’s
disposable fibrous pads impregnated with a skin cleanser
antiseptic and deodorizing preparation.
Ser. No. 76/010,402
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Second, the vast majority of the third-party
registrations made of record by the Examining Attorney do
not cover registrant’s particular type of goods, but rather
cover soaps and the very broad category of “skin
cleansers.” While registrant’s goods could be considered
“skin cleansers,” so could many other types of products
including those that consist simply of liquids that do not
involve any pads, fibrous or otherwise.
In sum, given the clear differences in the marks and
the fact that on this particular record we can simply say
that applicant’s goods and registrant’s goods are related
only to the extent that they clean the body, we find that
there exists no likelihood of confusion.
Decision: The refusal to register is reversed.
Ser. No. 76/010,402
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Drost, Administrative Trademark Judge, dissenting:
I would affirm the refusal to register for the
following reasons.
First, I believe that the marks are similar in sound,
appearance, meaning, and commercial impression.
The majority finds that the visual appearance is
“quite distinct” with applicant’s mark depicted in “a
unique, elongated script.”
In this admittedly somewhat subjective determination, I
would find that the script of both marks seems to be a
similar cursive or longhand style of presenting the marks.
While registrant’s style is crisper, I do not see any
significant difference in the style of the script.
Another difference is that applicant begins its mark
with a small letter “b,” while registrant’s mark is
Ser. No. 76/010,402
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capitalized. This difference in capitalization is not
unusual, and while the majority observes that applicant’s
initial letter may be viewed as an “l,” this is also not
unusual when the letters “b” and “l” are written in
cursive.
Besides the word BIDET or BIDETTE, the only other
differences between the marks are the different designs in
the marks (a small flower in registrant’s mark and a
fountain of water design in applicant’s mark) and
applicant’s inclusion of the words “French Milled Soap.”
Disclaimed matter is often “less significant in creating
the mark’s commercial impression.” In re Code Consultants
Inc., 60 USPQ2d 1699, 1702 (TTAB 2001). In this case,
applicant’s design mark shows the disclaimed terms in
smaller type below the term “bidet” making it less likely
that prospective purchasers would use this highly
descriptive or generic terminology to distinguish the
marks. See In re Azteca Restaurant Enterprises Inc., 50
USPQ2d 1209, 1211 (TTAB 1999) (“On applicant's menus, which
are the specimens of record, the [disclaimed] words appear
on a line below the term AZTECA and are in smaller type
than the term AZTECA. Certainly, when applicant's mark is
viewed as a whole, it is the term AZTECA which is the
dominating and distinguishing element thereof”). In
Ser. No. 76/010,402
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addition, applicant’s specimens emphasize the “bidet”
portion of the mark by using that word several other times
(“Bidet Pour Femme,” “BidetSoap,” and www.bidetsoap.com).
I also believe that the words could, and likely would
be pronounced similarly. Normally “there is no correct
pronunciation of a trademark.” In re Belgrade Shoe Co.,
411 F.2d 1352, 162 USPQ 227, 227 (CCPA 1969). See also
Interlego AG v. Abrams/Gentile Entertainment Inc., 63
USPQ2d 1862, 1863 (TTAB 2002). In this case, while the
term “bidette” may not have an established dictionary
pronunciation, it is not clear why prospective purchasers
would not pronounce it in a manner similar to applicant’s
word “bidet.” The pronunciation of “bidet” itself is not
entirely uniform. See Funk & Wagnalls New “Standard”
Dictionary of the English Language (1952) (bi-det3 or bi-
dĕt´); Webster’s Third New International Dictionary of the
English Language Unabridged (1986) (bχ'det or bē-,'dā); and
The Concise Oxford-Hachette French Dictionary (1995)
('bi:det, US bi:'det).1 If the pronunciation of “bidet” can
vary, there is no reason why registrant’s mark, which is
not in the dictionary, “would be pronounced in a clearly

1 We, of course, can take judicial notice of dictionary
definitions. University of Notre Dame du Lac v. J.C. Gourmet
Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 76/010,402
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different manner.” The examining attorney’s argument that
the “marks in question clearly could be, and likely would
be, pronounced the same” is reasonable.
In terms of meaning, I would find that prospective
purchasers would view registrant’s mark as “an
unconventional spelling” of the word “bidet” as the
examining attorney suggests. Office Action dated September
19, 2000, p. 2. The meaning of the marks would, therefore,
be very similar. Purchasers are much more likely to view
the mark “bidette” as a misspelling of the word “bidet”
than they would be to view it as a feminine first name.
Overall the marks are similar in sound, appearance,
and meaning, and their commercial impressions are also
similar. The similarities of the mark outweigh their
differences.
As to the goods, I would likewise find that they are
similar. Registrant’s goods are “disposable fibrous pads
impregnated with a skin cleansing antiseptic and
deodorizing preparation.” Applicant’s specimens make clear
that its “bar soap” is “formulated for a woman’s most
intimate body areas” and it is used “to clean and
deodorize.” Indeed, applicant itself concedes that
“registrant[‘s] and applicant’s products are used/applied
to women’s intimate parts.” Brief at 2. Applicant
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distinguishes the goods only on the basis that “applicant’s
packaging states that its products are also ‘good for the
whole body.’ Registrant[‘s] pads cannot be intended for
the whole body.” Id. While there is no doubt that the
goods are not identical, purchasers of registrant’s pads
for cleaning and deodorizing “women’s intimate parts” would
likely overlap with the purchasers of applicant’s bar soap
that does the same thing. To the extent that this point is
contested, the examining attorney has present at least some
evidence that the same source sells soap and wipes under a
common mark. See Registration No. 2,336,126 (“hand soap;
hand and body lotion; and disposable hand wipes impregnated
with a cleansing solution”); No. 1,866,677 (“Antibacterial
cleansing soap and impregnated wipes for cleaning”); and
No. 2,225,948 (“pre-moistened disposable wipes impregnated
with compounds for personal hygiene, skin care products for
the human body, namely liquid and powdered soap, hair and
body shampoo, hand and body creams and lotions, non-
medicated moisture barrier skin treatment”). This evidence
rebuts applicant’s unsupported argument that the fact that
registrant’s goods do not require water and applicant’s do
is significant.
Because the marks are similar and the goods are sold
to the same purchasers for the same or related purposes, I
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would find that potential purchasers are likely to believe
that the source of the goods are associated in some way.
Therefore, I would hold that there is a likelihood of
confusion in this case.