Visage, Inc.

Trademark Trial and Appeal Board

May 23, 2007

No. 76572242 (T.T.A.B. May. 23, 2007)

Mailed: May 23, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Visage, Inc.
________

Serial No. 76572242
_______

Dennis H. Cavanaugh of DH Cavanaugh Associates for Visage,
Inc.

Carrie Achen, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).1
_______

Before Hairston, Grendel and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

An application was filed by Visage, Inc. to register
the mark MONTRES DE FLEUR in standard character form on the
Principal Register for the following goods, as amended:
“Horological instruments, namely, wrist watches, table
clocks, wall clocks, car clocks, wallet clocks, and other
watches and clocks” in International Class 14.2

1 The instant application originally was examined by another
examining attorney, but subsequently was reassigned to the
examining attorney whose name is shown above.

2 Application Serial No. 76572242 was filed on October 21, 2004,
based upon applicant’s assertion of September 1, 2003 as the date
of first use of the mark anywhere and in commerce. Applicant
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 76572242
2
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as used in connection with applicant’s
goods, so resembles the mark, FLEUR, previously registered
in typed or standard character form for “watches and
jewelry,” in International Class 143 as to be likely to
cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed main briefs
on the issue under appeal and applicant filed a reply
brief.
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,

subsequently submitted the following translation: “The English
translation of the wording in the mark is ‘flower watches.’” In
addition, applicant disclaimed MONTRES apart from the mark as
shown.

3 Registration No. 2623626 issued on September 24, 2002 with the
following translation of the foreign wording in the mark: “The
English translation of the word ‘FLEUR’ in the mark is ‘flower.’”

Ser No. 76572242
3
however, 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).
The Goods
We begin by comparing applicant’s goods with those of
registrant. In this case, the goods in the application and
the cited registration are, in part, identical.
Specifically, applicant’s “wrist watches” and “other
watches” are encompassed within the goods identified in the
registration, namely, “watches and jewelry.” In addition,
the examining attorney has made of record a number of use-
based third-party registrations which show that various
entities have adopted a single mark for jewelry, on the one
hand, and clocks and watches, on the other hand. See, for
example:
Registration No. 2204236 for, inter alia,
jewelry, namely, watches, clocks, pins,
cufflinks, earrings and pendants;

Registration No. 2464076 for, inter alia,
jewelry, namely, watches and lapel pins, clocks
and belt buckles of precious metal; and

Registration No. 2455844 for, inter alia,
jewelry, namely, watches, watch bands, ankle
bracelets, lapel pins, and clocks.
Ser No. 76572242
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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. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993). Thus, the evidence of record establishes that
applicant’s goods are identical in part and otherwise
closely related to those identified in the cited
registration.
Furthermore, because the goods are identical and/or
closely related and there are no restrictions as to their
channels of trade or classes of purchasers, we must assume
that the goods are, or will be, sold in all the normal
channels of trade to all the usual purchasers for such
goods, and that the channels of trade and the purchasers
for applicant’s and registrant’s goods would be the same.
See Interstate Brands Corp. v. McKee Foods Corp., 53 USPQ2d
1910 (TTAB 2000). As such, this du Pont factor favors a
finding of likelihood of confusion.
The Marks
It is clear that if these identical and closely
related goods were offered under similar marks there would
be a likelihood of confusion. Thus, we turn to the marks,
keeping in mind that when marks would appear on identical
Ser No. 76572242
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goods, as they do here, the degree of similarity between
the marks necessary to support a finding of likely
confusion declines. See Century 21 Real Estate v. Century
Life, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
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 or
services 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 Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In this case, applicant’s MONTRES DE FLEUR mark
incorporates in its entirety the registered mark FLEUR.
The “FLEUR” portion of applicant’s mark is identical in
appearance and sound to the mark in the cited registration.
As a result, the marks when viewed in their entireties are
highly similar in appearance and sound. In terms of
connotation, we find that to the extent that the
connotations of these marks would be apparent at all to
purchasers, they are similar. As applicant observes (reply
brief, p. 3) there is no evidence in the record which
Ser No. 76572242
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establishes that purchasers would readily translate the
words comprising its mark. See Palm Bay Imports, supra, 73
USPQ2d at 1696 (“When it is unlikely that an American buyer
will translate the foreign mark and will take it as it is,
then the doctrine of foreign equivalents will not be
applied.”) See also Safeway Stores Inc. v. Bel Canto Fancy
Foods Ltd., 5 USPQ2d 1980, 1982 (TTAB 1987)(“[T]his Board
does not think it proper to take the French expression ‘bel
air’ and the Italian expression ‘bel aria’ and then convert
both into English and compare the English
translations...”). In terms of overall commercial
impression, we find that the marks are highly similar. The
commercial impressions of both marks are that they contain
foreign-looking and foreign-sounding words which purchasers
are likely to take as they are, and which purchasers are
likely to confuse due to the obvious similarities in
appearance and sound.
In addition, to the extent that consumers would
understand the meaning of the foreign wording in the marks,
the term FLEUR has the same meaning in both marks. As a
result, the English translation of applicant’s mark,
namely, “flower watches” is highly similar to the English
translation of registrant’s mark, namely, “flower.” For
those consumers who are not familiar with this word, FLEUR
Ser No. 76572242
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will appear as the identical arbitrary term. Thus, whether
translated or not, applicant’s mark is highly similar in
connotation to that of registrant.
Further, if translated into English the distinctive
portion of applicant’s mark MONTRES DE FLEUR is FLEUR,
which is identical to registrant’s mark. As for the
presence of MONTRES in applicant’s mark, this term, which
has been disclaimed, clearly is descriptive, if not
generic, for the identified watches. It is a well-
established principle that, in articulating reasons for
reaching a conclusion on the issue of likelihood of
confusion, 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 a consideration of the marks in their
entireties. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). In view of the
descriptive nature of the word MONTRES, it has little, if
any, source-indicating significance when translated into
English, and is entitled to less weight in the likelihood
of confusion analysis. Consumers fluent in the French
language who are familiar with the mark, FLEUR, used on
registrant’s watches and jewelry, who then see the mark
MONTRES DE FLEUR used on various clocks and watches, are
Ser No. 76572242
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likely to assume that the owner of the FLEUR mark has
simply omitted MONTRES DE when using the mark on jewelry.
In other words, regardless of whether the marks are
translated into English consumers are likely to view both
marks as variations of each other, but both as indicating a
single source. Thus, despite the fact that applicant’s
mark includes the term MONTRES DE, the marks FLEUR and
MONTRES DE FLEUR are highly similar in appearance,
pronunciation and connotation, and convey very similar
commercial impressions.
In view of the foregoing, we find that, when
applicant’s MONTRES DE FLEUR mark and registrant’s FLEUR
mark are compared in their entireties, they are
sufficiently similar in appearance, sound, connotation and
commercial impression that, if used in connection with
identical and otherwise closely related goods, confusion
would be likely to occur. As such, this du Pont factor
also favors a finding of likelihood of confusion.
Third Party Registrations
In considering the involved marks, we have taken into
account the third-party registrations of various “FLEUR”
and “FLOWER” formative marks.4 This evidence is of limited

4 Applicant submitted printed copies of these registrations from
the United States Patent and Trademark Office’s Trademark
Ser No. 76572242
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probative value. Firstly, we note that certain of the
submitted registrations are cancelled or otherwise not
currently subsisting. Secondly, the registrations are
neither evidence of use of the marks shown therein nor
proof that consumers are familiar with said marks so as to
be accustomed to the existence of similar marks in the
marketplace. See Smith Bros. Mfg. Co. v. Stone Mfg. Co.,
476 F.2d 1004, 177 USPQ 462 (CCPA 1973); and Richardson-
Vicks, Inc. v. Franklin Mint Corp., 216 USPQ 989 (TTAB
1982). Thirdly, the registrations are for marks that are
less similar than the mark in the cited registration to
that of applicant and/or cover goods which are not similar
to the goods involved in this case.
Thus, we find that third-party registration of
somewhat similar marks notwithstanding, on the record in
this case, the mark in the cited registration is entitled
to more than a narrow scope of protection, particularly as
applied to goods that are identical in part to those
identified in the application at issue. See Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1740
(TTAB 1991), aff’d unpub., (Appeal No. 92-1086, Federal

Electronic Search System (TESS) as exhibits to its responses to
the examining attorney’s Office actions.

Ser No. 76572242
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Circuit, June 5, 1992). Cf. In re Broadway Chicken, Inc.,
38 USPQ2d 1559 (TTAB 1996).
Sophistication of Purchasers
The final du Pont factor discussed by applicant and
the examining attorney is that of the conditions of sale.
Applicant asserts that its goods as well as those of
registrant would be purchased by careful and sophisticated
users. However, applicant has submitted no evidence that
either its goods or those of registrant will be purchased
solely by sophisticated and careful purchasers. The goods
at issue herein are of a type that may be purchased by
ordinary consumers and typically run the gamut from
inexpensive to highly expensive. In the absence of any
evidence regarding the specific nature of the goods, we
must assume that they comprise watches, clocks and jewelry
in all price ranges, including inexpensive varieties that
may be purchased on impulse. Moreover, sophisticated
purchasers are not necessarily knowledgeable in the field
of trademarks or immune from source confusion. See In re
Decombe, 9 USPQ2d 1812, 1814-1815 (TTAB 1988). Further,
even if we assume that some degree of care were exhibited
in making the purchasing decision, applicant’s mark is so
similar to registrant’s mark that, when applied to goods
that are identical or closely related, even careful
Ser No. 76572242
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purchasers are likely to assume that the marks identify
goods emanating from a single source.
Neither applicant nor the examining attorney has
discussed any of the remaining du Pont factors. We note,
nonetheless, that none seems to be applicable, inasmuch as
we have no evidence with respect to them.
Conclusion
In light of the foregoing, we conclude that consumers
familiar with registrant’s goods sold under its above-
referenced mark would be likely to believe, upon
encountering applicant’s identical and closely related
goods offered under its mark that the goods originated with
or are somehow associated with or sponsored by the same
entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register is affirmed.