Vaporus Holdings Inc.

Trademark Trial and Appeal Board

Feb 8, 2018

No. 86856716 (T.T.A.B. Feb. 8, 2018)

Mailed: February 8, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Vaporus Holdings Inc.
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Serial No. 86856716
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Frederick Pinto of Frederick Pinto Legal Inc.
for Vaporus Holdings Inc.
George M. Lorenzo, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.1
_____

Before Cataldo, Wolfson and Goodman,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Vaporus Holdings Inc. (“Applicant”) seeks registration on the Principal Register
of the mark VAPORUS (in standard characters) for the following goods in
International Class 34:
Electronic cigarette boxes; Electronic cigarette cases;
Electronic cigarette lanyards; Electronic cigarette lighters;
Electronic cigarette liquid (e-liquid) comprised of

1 In this proceeding, Mr. Lorenzo represented the Office with respect to the application at
briefing. Katherine Weigle is the Examining Attorney that was responsible for the
application during prosecution.
This Opinion is Not a
Precedent of the TTAB
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flavorings in liquid form used to refill electronic cigarette
cartridges; Electronic cigarette liquid (e-liquid) comprised
of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Electronic cigarette refill
cartridges sold empty; Electronic cigarettes; Electronic
cigarettes for use as an alternative to traditional
cigarettes; Boxes for electronic cigarettes and electronic
cigarette accessories; Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and
atomizers, sold as a component of electronic cigarettes;
Cartridges sold filled with chemical flavorings in liquid
form for electronic cigarettes; Cartridges sold filled with
propylene glycol for electronic cigarettes; Cartridges sold
filled with vegetable glycerin for electronic cigarettes;
Cases for electronic cigarettes and electronic cigarette
accessories; Chemical flavorings in liquid form used to
refill electronic cigarette cartridges; Electric cigarettes;
Flavorings, other than essential oils, for use in electronic
cigarettes; Flavourings, other than essential oils, for use in
electronic cigarettes; Liquid nicotine solutions for use in
electronic cigarettes; Mechanical electronic cigarettes;
Smokers’ mouthpieces for use in association with electronic
cigarettes.2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of
confusion with the standard character mark VAPOROUS3 and the stylized mark
,4 both for the following goods:
Portable electric oral vaporizers for smoking purposes;
Parts and accessories for portable electric oral vaporizers
for smoking purposes, namely, atomizers and mouthpieces

2 Application Serial No. 86856716 was filed on December 22, 2015, under Section 1(b) of the
Trademark Act, based upon Applicant’s allegation a bona fide intent to use the mark in
commerce.
3 Reg. No. 4802100, registered September 1, 2015.
4 Reg. No. 4802101, registered September 1, 2015.
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sold as a component of electric oral vaporizers; and travel
cases specially adapted for portable electric oral vaporizers.
After the Trademark Examining Attorney made the refusal final, Applicant
requested reconsideration, which was denied. Applicant then appealed to this Board
from the final refusal. We affirm the refusal to register.
I. Likelihood of Confusion
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 Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key, though not exclusive,
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); In re Dixie Restaurants Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997).
A. The Marks
Under the first du Pont factor, we must consider whether Applicant’s VAPORUS
mark and Registrant’s VAPOROUS and VAPOROUS (stylized) marks are similar or
dissimilar when viewed in their entireties in terms of appearance, sound, connotation
and overall commercial impression. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting 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
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may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014); TMEP §1207.01(b) (October 2017). The test under the first
du Pont factor 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 their overall commercial impression that confusion as to the source of the
goods offered under the respective marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089
(TTAB 2016); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975)
(finding it “necessarily requires us to consider the fallibility of memory over a period
of time”).
Applicant’s mark is VAPORUS. For purposes of the du Pont factors that are
relevant to this appeal we will consider Applicant’s involved mark and the standard
character mark VAPOROUS in cited Registration No. 4802100. If likelihood of
confusion is found as to the mark and goods in this registration, it is unnecessary to
consider the other cited registration because the standard character mark
VAPOROUS is more similar to the mark in the involved application than is the
stylized representation of the term (the goods in both registrations are identical).
Conversely, if likelihood of confusion is not found as to the standard character mark,
we would not find likelihood of confusion as to the stylized mark in the other cited
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registration. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
Applicant’s mark VAPORUS is similar to the mark VAPOROUS in appearance
and pronunciation because they share the beginning term “VAPOR.” As this identical
portion of each mark is its first part, it is “most likely to be impressed upon the mind
of a purchaser and remembered.” Presto Products Inc. v. Nice-Pak Products, Inc., 9
USPQ2d 1895, 1897 (TTAB 1988); see also Palm Bay 73 USPQ2d at 1692 (“Veuve” is
the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the label); Wet Seal Inc. v. FD Mgmt.
Inc., 82 USPQ2d 1629, 1639 (TTAB 2007). The marks are also similar in appearance
and pronunciation because their respective suffixes, “-US” in Applicant’s mark, and
“-OUS” in the cited mark, differ by only the single vowel “O.”5
The marks are also similar in meaning and overall commercial impression. The
term “VAPOR” is defined as “a substance in the gaseous state as distinguished from
the liquid or solid state,”6 and this term is apparent in both Applicant’s and

5 Applicant argues that the addition of the letter “O” in the cited mark “creates a distinct
sound when pronounced,” 6 TTABVUE 10, citing the Oxford Dictionary (Exhibit F to
Applicant’s Request for Reconsideration at 61). While the reference shows that “famous” is
pronounced “/ˈfeIməs/,” and we take judicial notice that the Oxford Dictionary shows the
pronunciation for “us” is “/ʌs/,” the difference is insignificant. Moreover, the pronunciation
for “us” in Webster’s Dictionary is also “/ˈəs/,” demonstrating there is little, if any, real
difference in pronunciation between the syllables. At https://www.merriam-
webster.com/dictionary/us, accessed February 5, 2018. The Board may take judicial notice of
dictionary definitions, including definitions or entries from references that are the electronic
equivalent of a print reference work. See Univ. of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
6 At https://www.merriam-webster.com/dictionary/vapor.
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Registrant’s marks as suggesting the nature of the goods. Applicant argues that the
cited mark is weak because of the suggestion, but Applicant’s evidence of weakness,
lists of third-party registrations for marks containing the term “vapor,” is
inconclusive. The lists of registrations include only the mark, the serial or
registration number, and an indication that the mark is “live.” There is no
information as to the goods or services to which the marks pertain, or whether any
are owned by the same entity or subject to agreements among owners thereof, and we
are not privy to any evidence or argument adduced in these other registrations.
Noticeably, none of the registrations in the lists include marks for the term VAPOR
with the suffix “us” or “ous” (or equivalent) attached. Moreover, Applicant has not
petitioned to cancel the registration on the ground that the mark is merely
descriptive, and to the extent that applicant’s allegations constitute a collateral
attack on Registrant’s registration, they are impermissible. Trademark Act Section
7(b), 15 U.S.C. §1057(b); see In re Dixie Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1534 (Fed. Cir. 1997); In re Peebles Inc., 23 USPQ2d 1795, 1797 n.5 (TTAB
1992). In short, Applicant has not shown that the cited registration should be
accorded a narrow scope of protection.
Applicant further argues that its mark projects a different connotation and
commercial impression than the cited mark because VAPORUS is a coined term that
is “a conceptual play on the ‘communal’ aspect of the electronic cigarette industry.”7
According to Applicant, “[t]he electronic cigarette industry is characterized by its

7 6 TTABVUE 10.
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well-established community of highly involved consumers and proportionately active
businesses,” which has been captured by its juxtaposing the words “VAPOR” and
“US.” In support, Applicant has submitted copies of a study on “vape conventions”8
discussing how vaping conventions provide a venue for user social networking, and
web pages advertising vaping events and offering user forums.9 These materials do
not support Applicant’s contention that relevant consumers will view the suffix “US”
as meaning a community of individuals or business entities focused on vaping culture;
to the extent consumers may even notice the difference, the letter-string “US” is just
as likely to be perceived as simply a novel spelling of the suffix “-OUS” in the
recognized term VAPOROUS. Moreover, Applicant’s intent in adopting the mark as
one that would comply with “provincial laws that require the business name to be in
French,”10 and the evidence that Applicant has obtained Canadian registration of its
mark and apparently complied with quality assurance measures is irrelevant to
determining whether the marks are similar.
For the above reasons, we find that the first du Pont factor favors a finding of
likelihood of confusion.
B. The Goods
We next compare the similarities between Applicant’s goods and Registrant’s
goods, based on the goods as they are identified in the application and registrations,
respectively. Stone Lion, 110 USPQ2d at 1161; Octocom Sys. Inc. v. Houston

8 February 28, 2017 Request for Reconsideration, Exhibit D.
9 Id. Exhibit E.
10 6 TTABVUE 10.
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Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 17893, 1787 (Fed. Cir. 1990); see
also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002).
In this case, Applicant’s goods include “electronic cigarettes” and Registrant’s
goods include “portable electric oral vaporizers.” According to the Wikipedia article
submitted by Applicant, an electronic cigarette or e-cigarette is “a handheld electronic
device which vaporizes a flavored liquid.”11 A vaporizer is “a device used to produce
vapor from a substance.”12 Thus, both e-cigarettes and portable electric oral
vaporizers function the same and are essentially identical.13 In addition, both
Applicant’s and the Registrant’s goods include “atomizers” and “mouthpieces” used in
association with e-cigarettes or sold as a component thereof, and Applicant’s “cases
for electronic cigarettes and electronic cigarette accessories” encompass Registrant’s
“travel cases specially adapted for portable electric oral vaporizers.” These goods are
legally identical. Likelihood of confusion must be found with respect to a class of goods
in an application if there is likely to be confusion with respect to any item that comes
within the identification of the goods in that class. Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).

11 Request for Reconsideration at 70.
12 At http://www.ahdictionary.com, attached to April 13, 2016 Office Action at 39.
13 See, e.g., web articles “What are e-cigarettes (electronic cigarettes)?” at
http://www.medicalnewstoday.com, and “how e-cigs work,” at http://www.vaporfi.com,
equating e-cigarettes and vaporizers and explaining the equivalent function of both. Attached
to April 13, 2016 Office Action at 22 and 30.
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The Examining Attorney also made of record third-party registrations showing
that electronic cigarettes and vaporizers are of a kind that may emanate from a single
source under a single mark. For example, the mark VR (stylized) is registered for
“electronic cigarettes” and “oral vaporizers for smokers”;14 the mark BANG VAPOR
is registered for “electronic cigarettes” and “electronic oral vaporizers for smoking
purposes,”15 and the mark STEAM.INDUSTRIES is registered for “electronic
cigarettes” and “oral vaporizers for smoking purposes.”16 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 emanate from a single source. In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5
(TTAB 2015) (citing In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988)); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
The second du Pont factor strongly favors a finding of likelihood of confusion.
C. The Trade Channels; Purchasers
As noted above, Applicant’s and Registrant’s goods are identical in part and there
are no recited restrictions as to their channels of trade or classes of purchasers. When
identical goods are recited in an application and registration with no limitations as
to their channels of trade or classes of consumers, such channels of trade and classes
of consumers must be considered to be legally identical. See Citigroup Inc. v. Capital

14 Reg. No. 4873323, registered December 22, 2015. Attached to April 13, 2016 Office Action
at 44.
15 Reg. No. 4929023, registered March 29, 2016. Id. at 47.
16 Reg. No. 4873943, registered December 22, 2015. Id. at 53.
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City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re
Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there
are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). See also In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (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). Moreover, Applicant’s assertion that Registrant “operates in the highly
regulated industry of medicinal marijuana”17 is entirely unsupported by any record
evidence. A mere assertion made in a brief is not recognized as evidence. In re
Simulations Publications, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975); In re
Vesoyuzny Ordena Trudovogo Krasnogo Znameni, 219 USPQ 69, 70 (TTAB 1983).
See also Spin Physics, Inc. v. Matsushita Electric Co., 168 USPQ 605, 607 (TTAB
1970) (the arguments and opinion of counsel are insufficient to overcome the facts).
The third du Pont factor regarding the trade channels and classes of purchasers
to whom the goods are offered, favors a finding of likelihood of confusion.
D. Conditions of Sale
The identifications of goods in Applicant’s application and in the cited
registration do not include any restrictions or limitations as to cost. In view thereof,
we must presume that the parties’ goods include e-cigarettes and related goods at all

17 Appeal Brief, 6 TTABVUE 7.
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price points, including relatively inexpensive items that would be subject to impulse
purchase without significant deliberation. “When products are relatively low-priced
and subject to impulse buying, the risk of likelihood of confusion is increased because
purchasers of such products are held to a lesser standard of purchasing care.” Recot
Inc. v. M.C. Becton, 214 F.3d 1322, 1327, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000)
(citations omitted); see also Eveready Battery Co., Inc. v. Green Planet, Inc., 91
USPQ2d 1511, 1516 (TTAB 2009) (“Generally, purchasers of casual, low cost ordinary
consumer items exercise less care in their purchasing decisions and are more likely
to be confused as to the source of the goods.”) (citing Specialty Brands, Inc. v. Coffee
Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984)).
Applicant argues that “consumers in the electronic cigarette industry are highly
engaged and involve personal preferences for flavours”18 and therefore are
sophisticated purchasers. We disagree. The relevant consumer for Applicant’s and
Registrant’s goods is the general public who are unlikely to exercise any more than
ordinary care. A preference for a certain flavor of e-liquid does not qualify a consumer
as an expert, as Applicant suggests. Further, the record shows that e-cigarettes are
relatively inexpensive. Specifically, Applicant’s “Ce5-S Spinner Starter Kit” is offered
on its website for $40.19 Registrant’s “Pal Tank Starter Kit” is offered at $25.20 Such
goods may be purchased by consumers casually and without great care.

18 Appeal Brief, 6 TTABVUE 11.
19 Exhibit L to Applicant’s February 28, 2017 Request for Reconsideration at 86.
20 Id. at 83, Exhibit K.
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We are not persuaded by Applicant’s arguments regarding the allegedly
substantial differences in price of the involved goods or that the purchasers are
sophisticated. We find that, as a result of the foregoing, the fourth du Pont factor also
favors a finding of likelihood of confusion.
II. Summary
Prospective consumers familiar with Registrant’s VAPOROUS vaporizers would
be likely, when confronted with Applicant’s VAPORUS e-cigarettes, to believe that
the goods are manufactured by the same company. Applicant’s mark and Registrant’s
mark are similar in appearance, pronunciation, connotation, and overall commercial
impression. The goods are identical in part and are sold at relatively low price points,
and the purchasers have not been shown to be sophisticated.
III. Decision:
The refusal to register Applicant’s mark VAPORUS under Trademark Act
Section 2(d) is affirmed.