Young Living Essential Oils, LC

Trademark Trial and Appeal Board

Aug 9, 2019

87684401 (T.T.A.B. Aug. 9, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: August 9, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Young Living Essential Oils, LC
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Serial No. 87684401

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Young Living Essential Oils, LC, pro se.

Lauren Dantzler, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
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Before Ritchie, Lynch, and Pologeorgis
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Young Living Essential Oils, LC (“Applicant”) seeks registration on the Principal
Register of the standard character mark R.C. for goods identified as “Essential oils
for aromatherapy use,” in International Class 3.1 The Examining Attorney refused
registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), based on the prior registration issued on the Principal Register of the mark

1 Serial No. 87684401, filed on November 14, 2017, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1(a), alleging dates of first use and first use in commerce on December 31, 1995.
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RC COSMETICS (and design), as shown below, for “Cosmetics and cosmetic
preparations; cosmetics and make-up,” in International Class 3:2

The description of the marks states: The mark consists of the literal
elements "RC COSMETICS" in stylized form wherein the word "RC" is
placed inside a stylized shield-like frame image on left side [sic] and
beside the image appears the word "COSMETICS". Color is not claimed
as a feature of the mark.

The registration disclaims the right to exclusive use of the term “COSMETICS”
apart from the mark as shown.
After the Examining Attorney made the refusal final, Applicant filed a timely
appeal. Both Applicant and the Examining Attorney filed briefs. For the reasons
discussed herein, we affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin

2 Registration No. 4733941, registered May 12, 2015.
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Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we keep in mind that “[t]he
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.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “Not all of
the [du Pont] factors are relevant to every case, and only factors of significance to the
particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)).
A. The Marks
We first compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. 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 their overall
commercial impression that confusion as to the source of the goods offered under the
respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101
USPQ2d at 1721. Under actual marketing conditions, consumers do not necessarily
have the luxury of making side-by-side comparisons between marks, and must rely
upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ
Serial No. 87684401
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255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re
Assoc. of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975). In this case, the relevant purchaser
includes consumers of cosmetics and essential oils, as identified in the application
and the cited registration.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. Vv. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
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. In re Nat’l Data Corp., 224
USPQ at 751.
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Applicant’s mark consists solely of the letters or terms “R.C.,” in standard
character form. We find that consumers are likely to pronounce Applicant’s mark as
the letters “RC,” without vocalizing “period” or “dot” subsequent to each of the two
letters.3 The mark in the cited registration, , contains the literal terms
“RC COSMETICS.” Regarding the appearance of the marks, while we consider the
marks as a whole, our precedent dictates that “it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and remembered.”
Presto Prods., Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). We
find the marks look and sound highly similar because of the common element
RC/R.C., which forms the entirety of Applicant’s mark and which dominates the cited
mark.
The cited registration contains a disclaimer of the term “COSMETICS,” which is
descriptive or generic for the identified “cosmetics.” While we consider each mark in
its entirety, it is, nevertheless, well-settled that disclaimed, descriptive matter may
have less significance in likelihood of confusion determinations. See Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may

3 Indeed while, as noted below, we do not consider the web pages submitted by Applicant,
since they do not contain the required URL and access date, we observe nevertheless that
the web page in Exhibit B to Applicant’s August 2, 2018 Response to Office Action, which
Applicant refers to as “a screenshot from Applicant’s website,” refers to “RC Essential Oil,”
with no periods.
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be given little weight in reaching a conclusion on the likelihood of confusion.’”)
(quoting In re Nat’l Data Corp., 224 USPQ at 752); In re Dixie Rests. Inc., 41 USPQ2d
at 1533-34; In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
(disclaimed matter is often “less significant in creating the mark’s commercial
impression”). Furthermore, while the cited mark contains a design element, we
generally give less weight to the style and design elements of a mark than to the
wording, because it is the wording that would be used by purchasers to request the
services. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir.
2012).
Applicant argues that the term “RC” in the cited mark will be perceived as a house
mark for Registrant, Royal Care Cosmetics. To support this assertion, Applicant
stated in its August 2, 2018 Response to Office Action, that “Exhibit A is a screenshot
from Registrant’s website showing RC COSMETICS Logo and a screenshot from
Registrant’s Facebook page showing the RC COSMETICS Logo directly above the
name Royal Care Cosmetics.” The Examining Attorney objected to this evidence,
however, on the ground that the webpages submitted by Applicant do not contain an
indication of the URL or of the date accessed, as required by the Board. See In re I-
Coat Co., 126 USPQ2d 1730, 1733 (TTAB 2018); In re Canine Caviar Pet Foods, Inc.,
126 USPQ2d 1590, 1593 (TTAB 2018).
The objection is sustained, and we give the unlabeled webpages no consideration.
We further note that, as our precedent dictates, we must base our analysis not on
marketplace use, but rather how the marks appear in the registration and the
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application. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1749
(Fed. Cir. 2017). In this regard, we find that consumers are likely to consider
Applicant’s “R.C.” to be the same as, or a close variation on, the cited mark,
.
Viewing the marks in their entireties, we find that they are similar in sight and
and sound, as well as in commercial impression and connotation. Accordingly, we find
this du Pont factor to weigh in favor of finding a likelihood of consumer confusion.
B. The Goods, Trade Channels, and Purchasers
We now consider the similarities or dissimilarities between the respective goods
as identified in the application and in the cited registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014) (goods as identified in involved application and cited registration compared);
Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990). Applicant identifies “essential oils for aromatherapy use,” while the
cited registration identifies “cosmetics and cosmetic preparations; cosmetics and
make-up.”
The Examining Attorney submitted the following relevant definition of cosmetics:
Cosmetics: substances intended to be applied to the human body for
cleansing, beautifying, promoting attractiveness, or altering the
appearance without affecting the body’s structure or functions. Included
in this definition are skin creams, lotions, perfumes, lipsticks, fingernail
polishes, eye and facial makeup preparations, permanent waves, hair
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colors, toothpastes, and deodorants, as well as any material intended for
use as a component of a cosmetic product.4

The Examining Attorney also submitted evidence of third-party websites that discuss
how “essential oils,” as identified by Applicant, may be used as an ingredient or
feature of “cosmetics,” as identified by Registrant:
Essential oils for Homemade Cosmetics: Essential oils are not limited to
being used as fragrances only. These potent essences can be used in
cosmetics, supplying the skin with precious nutrients.
Ecco-Verde.com.5

The beauty benefits of essential oils: Most essential oils have cosmetic
benefits in addition to their therapeutic properties.
Uniprix.com. 6

The Examining Attorney submitted additional evidence from Applicant’s own
website, touting its use of “essential oils” in creating its cosmetic products:
Personal Care: When it comes to beauty, who knows better than Mother
Nature? Infused with the purest essential oils, our personal care, skin
care, and beauty products unite nature with luxury.
Youngliving.com.7

Finally, the Examining Attorney submitted evidence of third-parties that offer
for sale under the same mark both essential oils, as identified by Applicant, and
various cosmetics, as identified by Registrant. These include Doterra (doterra.com);
Aura Cacia (AuraCacia.com); Now Foods (NowFoods.com); PipingRock
(PipingRock.com); Aveda (Aveda.com); NuSkin (NuSkin.com); Orglamix
(Orglamix.com); and Shea Moisture (SheaMoisture.com), several of which refer more

4 Medicaldictionaryweb.com; Attached to March 3, 2018 Office Action, at 5.
5 Attached to September 4, 2018 Final Office Action, at 27.
6 Attached to September 4, 2018 Final Office Action, at 31.
7 Attached to September 4, 2018 Final Office Action, at 39.
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specifically to the “aroma” or aromatherapy uses of the essential oils.8 See In re
Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (relatedness
supported by evidence that third parties sell both types of goods under the same
mark, showing that “consumers are accustomed to seeing a single mark associated
with a source that sells both”). We find that the goods are similar and may be used in
a complementary manner.
As to channels of trade and classes of consumers, while Applicant’s identification
refers to “aromatherapy use,” the evidence indicates that such use is not exclusive of
other possible uses of essential oils, including as a complement to, or even an
ingredient in, cosmetics. Accordingly, we must assume that Applicant’s and
Registrant’s goods may travel via all normal channels of trade for such goods and be
marketed to typical consumers. See Squirtco v. Tomy Corporation, 697 F.2d 1038, 216
USPQ 937 (Fed. Cir. 1983). As indicated by the third-party evidence and Applicant’s
own website, some of the same websites of record offer both types of goods to
overlapping members of the general public that seek both essential oils for
aromatherapy use, such as Applicant’s, and cosmetics, such as
Registrant’s.9 Accordingly, the second and third du Pont factors also weigh in favor
of finding a likelihood of confusion.

8 Attached to March 3, 2018 Office Action, at 6-34, and September 4, 2018 Final Office
Action, at 3-23.
9 Although Applicant correctly points out that mere marketing via the Internet may not be
sufficient to find overlapping channels of trade, the evidence of record demonstrates that a
number of third-party sellers offer for sale both cosmetics and essential oils via the same
channels and under the same mark.
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C. Conclusion
After considering all of the arguments and evidence of record as they pertain to
the relevant du Pont factors, we find that Applicant’s mark is similar to the cited
mark, when considered as a whole in sight, sound, connotation, and commercial
impression. We further find that the goods are similar and are likely to be used in a
complementary way, and travel through some of the same channels of trade to the
same classes of consumers. Accordingly, we find a likelihood of confusion between
Applicant’s mark, R.C., and the mark in the cited registration, , for
the goods identified.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.