Brooklands Watch Company Limited

Trademark Trial and Appeal Board

Sep 24, 2021

79246854 (T.T.A.B. Sep. 24, 2021)

Mailed: September 24, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Brooklands Watch Company Limited
————
Serial No. 79246854
————
Brok S. Humbert of Knobbe, Martens, Olson & Bear, LLP,
for Brooklands Watch Company Limited.

Marcie R. Frum Milone, Trademark Examining Attorney, Law Office 116,
Matthew J. Cuccias, Acting Managing Attorney.
————
Before Mermelstein, Pologeorgis, and Hudis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Brooklands Watch Company Limited (“Applicant”) seeks registration on the
Principal Register of the standard character mark BROOKLANDS WATCH CO for
“Watches; watch straps; watch winders; watch boxes” in International Class 14.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of

1 Application Serial No. 79246854 was filed on October 26, 2018 under Section 66(a) of the
Trademark Act, 15 U.S.C. § 1141f(a), requesting extension of protection based on
International Registration No. 1437620.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 79246854
2
likelihood of confusion with the standard character mark BROOKLAND registered
on the Principal Register for “jewelry” in International Class 14.2 Additionally, the
Examining Attorney refused registration on the grounds that Applicant failed to
provide (1) a disclaimer of the wording WATCH CO, and (2) information concerning
the meaning of the term BROOKLANDS in Applicant’s mark.
When the refusals were made final, Applicant appealed. Both Applicant and the
Examining Attorney filed briefs. For the reasons explained below, we affirm the
refusal to register solely under Section 2(d) of the Trademark Act.3
I. Preliminary Matters
A. Examining Attorney’s Evidentiary Objection
We initially turn to an evidentiary objection lodged by the Examining Attorney
regarding evidence presented by Applicant for the first time with its appeal brief. The
Examining Attorney objects to three exhibits attached to Applicant’s brief that were
not made of record prior to the filing of the notice of appeal.4 Additionally, the
Examining Attorney contends that Applicant belatedly provided in its appeal brief
information responsive to the outstanding request for information regarding the
meaning or significance of the term “BROOKLANDS.”5

2 Registration No. 5740609 was issued on April 30, 2019.
3 Trademark Status & Document Retrieval (“TSDR”) citations refer to the docket and
electronic file database for the involved application. All citations to the TSDR database are
to the downloadable .pdf version of the documents. References to the briefs on appeal refer to
the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry
number; and after this designation are the page references, if applicable.
4 Examining Attorney’s Brief, p. 4, 9 TTABVUE 5.
5 Id.
Serial No. 79246854
3
The record in an ex parte proceeding should be complete prior to appeal.
Trademark Rule 2.142(d); 37 CFR § 2.142(d). Exhibits that are attached to a brief but
not made of record during examination are untimely, and will not be considered. See
In re Fitch IBCA, Inc., 64 USPQ2d 1058, 1059 n.2 (TTAB 2002); see also TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 1203.02(e) and 1207.01
(June 2021). To the extent Applicant wished to introduce additional evidence or
satisfy an information request requirement after its appeal had been filed, Applicant
should have filed a written request with the Board to suspend the appeal and remand
the application for further examination pursuant to Trademark Rule 2.124(d).
Applicant did not do so. In view thereof, the Examining Attorney’s evidentiary
objection is sustained and we therefore give the three exhibits and the responsive
statements to the information request submitted for the first time with the appeal
brief no further consideration.
That being said, we note that the Examining Attorney acknowledged in her appeal
brief that Applicant finally complied, albeit belatedly, with the requirement to
provide information regarding the significance of Applicant’s mark and, therefore,
the requirement is now moot.6 We construe the Examining Attorney’s statement as
effectively withdrawing the requirement for information on which she finally refused
registration and that this issue is no longer part of this appeal.
B. Disclaimer Requirement
As noted above, the Examining Attorney also refused registration of Applicant’s

6 Examining Attorney’s Appeal Brief, p. 5, fn. 1; 9 TTABVUE 6.
Serial No. 79246854
4
mark on the ground that Applicant failed to provide the requested disclaimer of the
wording “WATCH CO”. Applicant, however, did provide the following disclaimer in
its appeal brief: No claim is made to the exclusive right to use “WATCH CO.” apart
from the mark as shown.7
In her appeal brief, the Examining Attorney acknowledged that while Applicant
provided the required disclaimer in its appeal brief, the proffered disclaimer
nonetheless includes a typographical error in the nature of a period after the term
“CO”.8 The Examining Attorney further noted that she was willing to accept the
disclaimer once the period was removed.9
We first note that in her initial office and final office actions, the Examining
Attorney suggested a disclaimer that included the period after the term “CO”.10 Here,
Applicant provided the exact wording suggested by the Examining Attorney. We find
it remarkable for the Examining Attorney to lay the blame for the typographical error
on Applicant when it was the Examining Attorney herself who suggested the
incorrect disclaimer. Notwithstanding, because a party cannot disclaim matter that
is not part of its mark and in the interest of judicial economy, we accept and enter
Applicant’s disclaimer without the period following the term “CO”.11 In view thereof,

7 Applicant’s Appeal Brief, p. 3; 7 TTABVUE 4.
8 Examining Attorney’s Appeal Brief, p. 5, fn. 2; 9 TTABVUE 6.
9 Id.
10 February 19, 2019 Office Action, at TSDR p. 2 and August 25, 2020 Final Office Action, at
TSDR p. 7.
11 We take judicial notice that both CO and CO. are acceptable abbreviations for the word
“company.” See www.abbreviations.com (accessed on September 22, 2021). The Board may
Serial No. 79246854
5
we consider the final requirement to provide the requested disclaimer as satisfied and
effectively withdrawn. Accordingly, the disclaimer of “WATCH CO” is now part of the
application record, and the disclaimer issue is therefore no longer part of this appeal.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned
to each DuPont factor depending on the evidence presented. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he
various evidentiary factors may play more or less weighty roles in any particular
determination.”).
In any likelihood of confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);

take judicial notice of dictionary definitions, including online dictionaries that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff'd, 823 F.3d
594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104
n.9 (TTAB 2018). Accordingly, this is not a situation where a party must provide a disclaimer
of the correct spelling of a misspelled word. See TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 1213.08(c) (July 2021).
Serial No. 79246854
6
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.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. Similarity of the Marks
We first consider the similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression. See Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 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 Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” In re i.am.symbolic, LLC, 123 USPQ2d at 1748 (quoting Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012) (internal quotation marks omitted)). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
Serial No. 79246854
7
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 (TTAB 1975).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on a comparison of 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. v. 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.”). However, “in articulating reasons for reaching a conclusion
on the issue 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 consideration of the marks in their entireties.” In re
Nat’l Data, 224 USPQ at 751.
Applicant’s mark is BROOKLANDS WATCH CO in standard characters. The
cited mark is BROOKLAND, also in standard characters. Given that Applicant’s
mark begins with virtually identical wording as the cited mark, i.e., BROOKLANDS
vs. BROOKLAND, the marks are similar in sound, appearance, connotation and
commercial impression. The fact that the initial term in Applicant’s mark appears in
plural form while the cited mark appears in singular form is of no consequence. See
Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015)
(holding “it is obvious that the virtually identical marks [the singular and plural of
Serial No. 79246854
8
SWISS GRILL] are confusingly similar”); Weider Publ’ns, LLC v. D & D Beauty Care
Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (finding the singular and plural forms of
SHAPE to be essentially the same mark) (citing Wilson v. Delaunay, 245 F.2d 877,
878, 114 USPQ 339, 341 (CCPA 1957) (finding no material difference between the
singular and plural forms of ZOMBIE such that the marks were considered the same
mark).
Furthermore, it is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered when making purchasing
decisions. Palm Bay Imps., 73 USPQ2d at 1692; see also Presto Prods., v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). As such, consumers will focus more
on the BROOKLANDS portion of Applicant’s mark as the source-indicator for
Applicant’s goods. This especially holds true since the inclusion of the descriptive, if
not generic, and disclaimed wording WATCH CO in Applicant’s mark will not detract
from the overall similarities between Applicant’s mark and the cited mark
BROOKLAND. Disclaimed matter that is descriptive of or generic for a party’s goods
or services is typically less significant or less dominant when comparing marks. In re
Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018)
(citing In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed.
Cir. 1997)); TMEP § 1207.01(b)(viii).
Additionally, consumers who are familiar with Registrant’s BROOKLAND
jewelry mark and who then encounter Applicant’s BROOKLANDS WATCH CO for
watches and watch accessories may think Applicant’s goods are a product line
Serial No. 79246854
9
extension of Registrant’s goods. See, e.g., Double Coin Holdings Ltd. v. Tru Dev., 2019
USPQ2d 377409, *7 (TTAB 2019) (“ROAD WARRIOR looks, sounds, and conveys the
impression of being a line extension of WARRIOR”); Joel Gott Wines LLC v. Rehoboth
Von Gott, Inc., 107 USPQ2d 1424, 1433 (TTAB 2013) (“Purchasers of opposer’s GOTT
and JOEL GOTT wines are likely to assume that applicant’s goods, sold under the
mark GOTT LIGHT and design, are merely a line extension of goods emanating from
opposer”); Schieffelin & Co. v. Molson Cos., 9 USPQ2d 2069, 2073 (TTAB 1989)
(“Those consumers who do recognize the differences in the [BRADOR and BRAS
D’OR] marks may believe that applicant’s mark is a variation of opposer’s mark that
opposer has adopted for use on a different product.”).
In challenging the refusal, Applicant argues that the two marks have differing
distinct meanings and, therefore, different overall commercial impressions.
Specifically, Applicant contends that the meaning of the term BROOKLANDS in its
mark refers to a famous motor racing circuit and aerodrome built near Weybridge in
Surrey, England.12 Additionally, Applicant asserts that BROOKLANDS is a common
name for places and institutions in the United Kingdom.13 In contrast, Applicant
maintains the cited mark BROOKLAND refers to Registrant’s home in Brooklyn,
New York.14 Specifically, Applicant contends that the cited mark unequivocally refers
to the geographic location of Brooklyn, New York, and refers to its previously

12 Applicant’s Appeal Brief, p. 7; 7 TTABVUE 8.
13 Id., p. 3; 7 TTABVUE 4.
14 Id.
Serial No. 79246854
10
submitted evidence from Registrant’s website that purportedly states that its founder
was “an immigrant that now calls Brooklyn home, founded BROOKLAND as a tribute
to the city that became home for him and his family, that gave him an opportunity to
establish his business and grow it from the ground up, everything is inspired,
designed and manufactured in Brooklyn, a city of entrepreneurship, innovation, and
design.”15
Applicant’s argument is unavailing. There is no admissible evidence of record
regarding the details of the circuit and aerodrome in Surrey, England or that the term
BROOKLANDS refers to places and institutions in the United Kingdom. More
importantly, there is no evidence that an appreciable number of relevant consumers
in the United States would know of the circuit and aerodrome and draw a connection
to Applicant’s goods. Moreover, although we acknowledge that Applicant submitted
excerpts from Registrant’s website indicating that Registrant hails from Brooklyn,
New York and that it “founded BROOKLAND as a tribute to the city,” we do not find
this evidence sufficient to persuade us that a significant number of relevant
consumers would view the word “BROOKLAND” in the cited mark as Brooklyn, New
York. We further note that the cited mark registered on the Principal Register
without a showing of acquired distinctiveness. As such, Applicant’s argument that
the cited mark is “unequivocally” geographic in nature would constitute an
impermissible collateral attack on the registered mark. In an ex parte appeal such as
this one, an applicant cannot be heard on matters such as this attack on the cited

15 April 1, 2020 Response to Office Action, Exh. 1 at TSDR p. 7.
Serial No. 79246854
11
registration. In re Dixie Restaurants, 41 USPQ2d at 1534; and In re Peebles Inc., 23
USPQ2d 1795, 1797 n.5 (TTAB 1992). See also TMEP § 1207.01(d)(iv).
Quite simply, the cited mark and the dominant portion of Applicant’s mark consist
of virtually the identical wording, i.e., BROOKLAND and BROOKLANDS. For the
reasons discussed above, consumers are more likely to remember the term
BROOKLANDS than the other elements of Applicant’s mark. Nat’l Data, 224 USPQ
at 751. While we have not overlooked the wording WATCH CO or the pluralization
of the term BROOKLAND in Applicant’s mark, we nonetheless conclude that
Applicant’s BROOKLANDS WATCH CO mark and the cited mark BROOKLAND,
when considered in their entireties, are more similar than dissimilar.
Thus, the first DuPont factor favors a finding of likelihood of confusion.
B. Relatedness of the Goods
We next compare the parties’ respective goods under the second DuPont factor.
In making our determination regarding the relatedness of the goods, we must look to
the goods as identified in Applicant’s application and the goods listed in the cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an applicant’s mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which the sales of goods are
directed.”)); see also In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Serial No. 79246854
12
It is sufficient that the respective goods are related in some manner, or that the
conditions and activities surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under circumstances that could,
because of the similarity of the marks, give rise to the mistaken belief that they
originate from the same source. See Coach Servs., 101 USPQ2d at 1722 (internal
citation omitted); Hilson Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d
1423, 1432 (TTAB 1993). The issue here, of course, is not whether consumers would
confuse Applicant’s goods with Registrant’s services, but rather whether there is a
likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
Moreover, registration must be refused if Applicant’s mark for any of its identified
goods is likely to cause confusion with the Registrant’s mark for any of its identified
goods. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir.
1983) (holding that a single good from among several may sustain a finding of
likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must be found if there is
likely to be confusion with respect to any item that comes within the identification of
goods or services in the application).
Applicant’s goods are “Watches; watch straps; watch winders; watch boxes.”
Registrant’s goods are “jewelry.”
In support of her argument that Applicant’s “watches” and Registrant’s “jewelry”
are related, the Examining Attorney submitted a wealth of Internet evidence
Serial No. 79246854
13
demonstrating that a single entity commonly promotes and sells Applicant’s type of
goods and Registrant’s type of goods under the same mark.16 This evidence supports
a finding that Applicant’s “watches” and Registrant’s “jewelry” are goods that
commonly emanate from a single source. See, e.g., In re C.H. Hanson Co., 116
USPQ2d 1351, 1355-56 (TTAB 2015) (relatedness found where Internet evidence
demonstrated goods commonly emanated from the same source under a single mark);
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both
parties, if presented, is relevant to the relatedness analysis”).
The Examining Attorney also submitted numerous live, use-based registrations
covering both Applicant’s “watches” and Registrant’s “jewelry.”17 Third-party
registrations are not evidence that the registered marks are in use or that the public
is familiar with them, but they have some probative value to the extent they serve to
suggest that the goods and services listed in the registrations are of a kind that may
emanate from a single source. See, e.g., In re I-Coat Co., 126 USPQ2d 1730, 1737
(TTAB 2018) (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB
2001)); In re Aquamar, 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co.,
6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
In addition to the evidence of record, we have previously found, albeit on different

16 August 25, 2020 Final Office Action, at TSDR pp. 67-124.
17 January 31, 2020 Office Action, at TSDR pp. 30-120; and August 25, 2020 Final Office
Action, at TSDR pp. 10-66.
Serial No. 79246854
14
records, that watches, especially those containing gemstones, are considered a form
of jewelry. See Monocraft, Inc. v. Leading Jewelers Guild, 173 USPQ 507, 507 n.4
(TTAB 1972) (“‘Watches’ include all types thereof including ornamental watches
which can be worn as costume jewelry”); cf. Gruen Indus., Inc. v. Ray Curran & Co.,
152 USPQ 778, 779 (TTAB 1967) (watches and men’s jewelry are “clearly so related”).
Based on the record before us, we find that Applicant’s “watches” are related to
Registrant’s “jewelry,” in that consumers may mistakenly believe that they emanate
from the same source under the same or similar mark. Accordingly, the second
DuPont factor also favors a finding of a likelihood of confusion.18
C. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because there are no limitations or restrictions as to trade channels
or classes of purchasers in the respective identifications of goods, we presume that
the parties’ respective goods are or would be marketed in all normal trade channels
for such goods and to all normal classes of purchasers of such goods. In re
i.am.symbolic, 123 USPQ2d at 1750 (quoting In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) and Hewlett-Packard v. Packard Press, 281 F.3d
1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002). The trade channels for both Applicant’s
and Registrant’s goods would include jewelry stores, online retailers (as
demonstrated by the evidence of record), and brick and mortar department stores
that offer both watches and jewelry for sale. The relevant class of consumers for both

18 Applicant does not contest that the goods at issue are related.
Serial No. 79246854
15
Applicant’s and Registrant’s goods includes ordinary consumers who desire to
purchase watches and jewelry. Accordingly, the trade channels and classes of
consumers for the goods at issue, at a minimum, overlap.19
D. Consumer Sophistication
The fourth DuPont factor concerns the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. Applicant argues that the parties’ respective goods are generally
not the type of goods to be purchased or selected on impulse or without due care.20 In
support of its argument, Applicant contends, without any evidence and solely on mere
argument, that its watches are priced to be sold for $7,500, which Applicant
maintains would give pause to even the most financially careless consumers.21
Similarly, Applicant contends that Registrant’s goods are not purchased on impulse
but only after careful consideration and references evidence previously submitted
which shows that Registrant offers jewelry for sale that ranges from $1,000 to more
than $15,000.22 Finally, Applicant argues that both Applicant’s goods and
Registrant’s goods serve to express the consumer’s individuality, style, taste, and

19 Applicant does not dispute that the channels of trade of the parties’ respective goods
overlap.
20 Applicant’s Appeal Brief, p. 8; 7 TTABVUE 9.
21 Id.
22 Applicant’s Appeal Brief, p. 9; 7 TTABVUE 10; April 1, 2020 Response to Office Action, at
TSDR p. 9.
Serial No. 79246854
16
judgment and, therefore, relevant consumers would exercise care in purchasing such
goods.23
Applicant’s arguments are unavailing. By way of extrinsic evidence and mere
argument, Applicant is impermissibly seeking to restrict the scope of the classes of
purchasers or price points of the goods even though neither the identification of goods
in Applicant’s application nor the identification of goods in the cited registration are
so restricted. In an ex parte appeal such as this, the question of likelihood of confusion
must be determined by analyzing the goods identified in the application vis-a-vis the
goods recited in the registration, rather than what extrinsic evidence shows those
goods to be. In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
Further, mere argument regarding the price point of Applicant’s goods or potential
consumers’ individuality, taste and style is not evidence. Cai v. Diamond Hong, Inc.,
901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (“Attorney argument is no
substitute for evidence.”) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d
1276, 1284, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)); see also In re U.S. Tsubaki, Inc.,
109 USPQ2d 2002, 2006 (TTAB 2014) (finding that there was no proof to support the
statements in the record by counsel).
To the contrary, we must presume that Applicant’s and Registrant’s goods
encompasses inexpensive or moderately-priced watches and jewelry. In re Bercut-
Vandervoort & Co., 229 USPQ at 764-65 (rejecting applicant’s arguments regarding
the high cost and quality of its wine and the sophistication of its purchasers, where

23 Applicant’s Appeal Brief, p. 9; TTABVUE 10.
Serial No. 79246854
17
application identified goods merely as “wine”). Further, even assuming that some
purchasers of Applicant’s “watches” or Registrant’s “jewelry” exercise significant care
in purchasing these goods, “Board precedent requires the decision to be based ‘on the
least sophisticated potential purchasers.”’ Stone Lion, 110 USPQ2d at 1163. Here,
there is no evidence that the least sophisticated purchasers in the general public will
exercise anything other than ordinary care.
Moreover, even if the actual or potential consumers of the parties’ goods are
sophisticated, they may not be sophisticated or knowledgeable in the field of
trademarks or immune from source confusion. See In re Shell Oil Co., 922 F.2d 1204,
26 USPQ2d 1687, 1690 (Fed. Cir. 1993) (indicating that “even sophisticated
purchasers can be confused by very similar marks”); Top Tobacco, LP v. N. Atl.
Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011); TMEP § 1207.01(d)(vii). Here,
where the marks at issue are similar and the goods are related, confusion is often
found likely despite customer sophistication and care. “That the relevant class of
buyers may exercise care does not necessarily impose on that class the responsibility
of distinguishing between similar trademarks for similar goods. ‘Human memories
even of discriminating purchasers . . . are not infallible.’” In re Research & Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (quoting Carlisle Chem.
Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA
1970)); In re Wilson, 57 USPQ2d 1863, 1865-66 (TTAB 2001) (where marks are very
similar and goods related, confusion may be likely even among sophisticated
purchasers). Finally, even if this factor weighs against a finding of likelihood of
Serial No. 79246854
18
confusion, it is outweighed by the similarities between the marks at issue, the
relatedness of the goods and the overlapping trade channels and classes of
purchasers.
Overall, we find the DuPont consumer sophistication factor to be neutral.
III. Conclusion
We have considered all of the arguments and evidence of record. We find that (1)
the marks at issue are similar in sound, appearance, connotation and commercial
impression; (2) Applicant’s and Registrant’s goods are related; and (3) the parties’
respective goods and services move in overlapping trade channels and would be
offered to the same or overlapping classes of purchasers. In view thereof, we conclude
that Applicant’s BROOKLANDS WATCH CO mark, as used in connection with
“watches,” so resembles the cited standard character mark BROOKLAND for
“jewelry” as to be likely to cause confusion or mistake, or to deceive under Section
2(d) of the Trademark Act, notwithstanding any sophistication of the relevant
consumers.
Decision: The refusal to register Applicant’s BROOKLANDS WATCH CO mark
under Section 2(d) of the Trademark Act is affirmed.