Cashere Jeanel Ashmeade

Trademark Trial and Appeal Board

Sep 2, 2020

87517030 (T.T.A.B. Sep. 2, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: September 2, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cashere Jeanel Ashmeade
_____

Serial No. 87517030
_____

Adam Alba of Magleby Cataxinos & Greenwood,
for Cashere Jeanel Ashmeade.

Nicholas K. D. Altree, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Taylor, Shaw and Pologeorgis,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Cashere Jeanel Ashmeade (“Applicant”) seeks registration on the Principal
Register of the mark STYLEBUY, in standard characters, for services identified as:
Wholesale buying club services; Wholesale buying club
services in the field of fashion, accessories, lifestyle and
home products; Wholesale distributorships featuring
fashion, accessories, lifestyle and home products; On-line
wholesale store services featuring clothing, accessories,
lifestyle, and home products through a global or other
computer network technologies, in International Class 35.1

1 Application Serial No. 87517030, filed on July 5, 2017, under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), based upon Applicant’s allegation of first use of the mark anywhere
Serial No. 87517030
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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
likelihood of confusion with the mark STYLE BUYS, in standard characters,
registered for the following goods and services:
 Backpacks; Luggage; Purses; Tote bags; Umbrellas; Wallets,
in International Class 18;2
 Clothing, namely, bathrobes, beach cover-ups, beachwear,
belts, blouses, boxer shorts, bras, camisoles, caps, coats,
dresses, footwear, gloves, halter tops, hats, headbands,
hosiery, jackets, jeans, jogging suits, knee highs, knit shirts,
knit tops, loungewear, mittens, night gowns, night shirts,
pajamas, panties, pants, scarves, shirts, shorts, skirts, slacks,
sleepwear, socks, sweat pants, sweat shirts, sweat shorts,
sweat suits, sweaters, swim wear, t-shirts, tank tops, ties,
tights, underpants, undershirts, underwear and vests, in
International Class 25;3 and
 Retail store services featuring clothing; online retail store
services featuring clothing, in International Class 35.4
When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. The case is fully briefed.5 We affirm the refusal to register.

on August 7, 2013 and in commerce on November 11, 2016.
2 Registration No. 5105891, issued December 20, 2016.
3 Registration No. 5105890, issued December 20, 2016.
4 Registration No. 5105893, issued December 20, 2016.
5 Page references herein to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents
contained in the TSDR database are to the downloadable .pdf versions of the documents in
the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d
1400, 1402 n.4 (TTAB 2018). 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.
Serial No. 87517030
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I. Preliminary Issues
A. Applicant’s motion to divide
On the same day Applicant filed her reply brief, Applicant concurrently filed a
motion to divide to move all services related to “lifestyle and home products” into a
separate application.6 The motion, however, did not include the additional fees
required to divide the application, nor did it include a request to remand the
application to the Examining Attorney for consideration of the amendment.7 The
Board denied the motion as untimely, noting that the case was fully briefed, and
forwarded the reply brief to the Examining Attorney.8 Applicant then filed a
supplemental motion to divide, explaining that she had tried to file a request to divide
via the Trademark Electronic Application System (“TEAS”) with her notice of appeal,
but encountered technical difficulties and was unable to complete the request to
divide at that time.9 The Board considered Applicant’s supplemental motion to divide
as a request for reconsideration of the denial of the motion but noted numerous
shortcomings in both Applicant’s original effort to divide the application and the
subsequent motion to divide.10 For example: TEAS does not allow the filing of a
request to divide an application, as in this case, once an appeal has been filed;

6 15 TTABVUE. Applicant’s main brief referenced a “motion to divide” but stated “[t]o the
extent necessary, Applicant will also submit a separate motion to divide under separate cover
in the coming days.” Applicant’s Br., p. 4 n.2, 12 TTABVUE 9. The motion was not submitted
until Applicant filed her reply brief more than 11 weeks later.
7 15 TTABVUE.
8 16 TTABVUE.
9 19 TTABVUE.
10 20 TTABVUE.
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Applicant unduly delayed in filing the motion to divide and did not request remand
to address the new issues raised; and Applicant did not indicate which services should
go in which application, and whether she would continue the appeal in one or both
applications.11
Nevertheless, due to the technical difficulties experienced by Applicant, the Board
remanded the case to the Examining Attorney and allowed Applicant sixty days “to
file a Request to Divide Application through TEAS with the requisite fee, failing
which the Examining Attorney must return the file to the Board, and the Board will
issue an order denying the March 25, 2020 Request for Reconsideration and resuming
the appeal.12 Upon remand, Applicant filed a request to divide through TEAS, but did
not do so until the sixty-first day after the remand order. The Examining Attorney
therefore denied the request to divide as untimely, and returned the case to the Board
for resumption of the appeal.13 Given the untimeliness of Applicant’s request to divide
the application, filed through TEAS, we have not considered the request. The
identification of services as filed remains the operative identification. In any event,
as discussed below, the amendment to the recitation of services to divide out all
services related “lifestyle and home products” would not obviate the refusal to register
under Section 2(d).

11 Id.
12 Id. at 6.
13 21 TTABVUE.
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B. Evidence submitted with Applicant’s reply brief
With her reply brief, Applicant submitted a number of exhibits, including office
actions from the application underlying a previously registered but now cancelled
mark, excerpts from magazines and third party websites, and purported examples of
use of Registrant’s mark. These exhibits are manifestly untimely. The evidentiary
record in an application should be complete prior to the filing of an ex parte appeal to
the Board. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); In re Midwest Gaming &
Entm’t LLC, 106 USPQ2d 1163, 1165 n.3 (TTAB 2013) (new evidence submitted with
reply brief is “untimely and therefore not part of the record for this case”); In re HSB
Solomon Assocs. LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (printouts submitted
with reply brief not considered). If Applicant wished to have new evidence considered
by the Examining Attorney after appeal, she should have requested remand for the
submission of additional evidence and provided a showing of good cause as to why the
evidence was not filed prior to appeal. See TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) § 1207.02 (2020). Because the materials were not
filed prior to the appeal, they will be given no further consideration by the Board.
II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
We must consider each DuPont factor for which there is evidence and argument. See,
e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir.
Serial No. 87517030
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2019). In any likelihood of confusion analysis, two key considerations are the
similarities between the goods or services and the similarities between the marks.
See 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 [or services] and
differences in the marks.”).
A. The number and nature of similar marks for similar services
Before reaching the degree of similarity of the marks, we address Applicant’s
evidence and argument under the sixth DuPont factor, “[t]he number and nature of
similar marks in use on similar goods [or services],” DuPont, 177 USPQ at 567, as
this may impact the scope of protection accorded the cited registrations. The Federal
Circuit has held that evidence of the extensive registration and use of similar marks
by others in the field can be powerful evidence of a mark’s weakness. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). The strength of a mark may
be assessed based on its conceptual strength arising out of the nature of the mark
itself and its commercial strength, derived from the marketplace recognition of the
mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed.
Cir. 2010).
Of course, because Registrant’s mark is registered, it is presumptively valid and
distinctive for the identified goods and services. Trademark Act Sections 7(b) and
33(a), 15 U.S.C. §§ 1057(b) and 1115(a); In re Fiesta Palms LLC, 85 USPQ2d 1360,
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1363 (TTAB 2007). Nonetheless, we may acknowledge the weakness of a registered
mark in the course of a DuPont analysis. In re Fat Boys Water Sports LLC, 118
USPQ2d 1511, 1517-18 (TTAB 2016).
Applicant argues that given the number of other registered marks containing the
term “style,” Registrant’s mark is relatively weak and entitled to a narrow scope of
protection, thereby virtually eliminating any likelihood of confusion:
Active third-party registrations of marks may be relevant
to show that a mark or a portion of a mark is so commonly
used that the public will look to other elements to
distinguish the source of the goods or services. . . . Evidence
of third-party use is relevant to show that the mark is
relatively weak and entitled to only a narrow scope of
protection. . . . Here, there are dozens of marks on the
registry in the same categories as the Registered Marks
that use similar terms as those used by Registered
Marks. . . . [Third-party registration] evidence shows the
Registered Marks are weak, and that a likelihood of
confusion is practically nonexistent.14
To support this argument, Applicant introduced more than forty third-party
registrations for marks comprising the term “style,” registered for clothing, fashion
accessories, jewelry, and household goods, as well as for retail, wholesale, or online
store services selling these goods. The following examples are representative:15
Mark Reg. No. Relevant Goods or Services
STYLEBONE and design 4168786 Jewelry; and
On-line wholesale and retail store services
featuring jewelry
STYLEBUREAU. 5729899 On-line retail store services featuring
apparel, leather goods, headwear,
footwear, watches and fashion accessories

14 Applicant’s Br., p. 16, 12 TTABVUE 21. (Internal citations omitted).
15 Applicant’s request for reconsideration dated October 3, 2019, TSDR 16-142.
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Mark Reg. No. Relevant Goods or Services
STYLESTOP 4695902 Retail stores featuring apparel, apparel
accessories, handbags, hats, scarves,
jewelry and shoes
STYLEWORD and design 5275712 Bathing suits; . . . Belts; Bikinis; Blouses;
Bottoms; Bras; Briefs; Caps; Coats;
Dresses; Gloves; . . . Hats; Jackets; Leather
coats; Leather jackets; Pants; Shirts;
Sweat suits; Swimsuits; . . . Underwear;
Vests; . . . Wearable garments and
clothing, namely, shirts
STYLEYOU 5341938 On-line retail store services featuring new
and used luxury goods; On-line retail store
services featuring new and used handbags;
On-line retail store services featuring
authenticated luxury goods; On-line retail
store services featuring authenticated new
and used handbags
STYLE DOME
(STYLE disclaimed)
5830955 Camisoles; Coats; Dresses; Hosiery;
Jackets; . . . Leather coats; Leather jackets;
. . . Outer jackets; Overalls; Overcoats;
Parkas; Ponchos; Raincoats; Scarves;
Shawls; Shirts; Short-sleeve shirts; Skirts;
. . . Sweaters; Tee-shirts; Trousers;
Waistcoats; Wind coats; Jerseys; Morning
coats; Over coats; Winter coats
STYLE CIRCLE 5335731 Retail store services in the field of clothing,
shoes, fashion accessories and clothing
accessories; . . . membership club services
in the nature of providing discounts to
members in the field of clothing, shoes and
fashion accessories
THE STYLE CLUB and
design
5154754 Women’s clothing, namely, shirts, dresses,
skirts, blouses; Women’s hats and hoods
STYLE FACTOR
(STYLE disclaimed)
5747447 Aprons; Beanies; Baseball caps and hats;
Knitted caps; Sports caps and hats
STYLE FINDER and
design
(STYLE disclaimed)
5390461 Retail clothing boutiques
STYLE FOR EVERYONE 5626191 [R]etail store services and online retail
store services featuring clothing, namely,
coats, outerwear, women’s sportswear,
men’s wear, children’s and infant’s wear,
footwear, socks and hosiery, and clothing
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Mark Reg. No. Relevant Goods or Services
accessories for adults, children and
infants, . . . housewares, bed and bath
linens, window treatments, furniture
accessories and decorative accessories,
luggage, bookbags, totebags and valises for
adults, children and infants, and
miscellaneous giftwares
STYLE FOR LIFE 5393009 Retail store, mail order catalog and online
retail store services featuring women’s
clothing, footwear, headgear, clothing
accessories, bags, handbags, leather goods,
small leather accessories, wallets,
sunglasses and eyeglasses, eyewear,
jewelry, watches, hair accessories and
giftware
STYLE HAVEN
(STYLE disclaimed)
5762212 [O]nline retail store services featuring
apparel, apparel accessories, jewelry
accessories and handbag accessories, and
bath and body care products
STYLE ME and design
(STYLE disclaimed)
5708698 Retail store services featuring fashion
goods

Because Applicant did not provide evidence of any third-party use of marks
consisting of or comprised of the term “style” for clothing, fashion accessories, jewelry,
household goods, or services related to selling these goods, we have no evidence of
commercial weakness. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (“Evidence
of third-party use of similar marks on similar goods [or services] is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.”);
Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1059 (TTAB 2017)
(“As to commercial weakness, ‘the probative value of third-party trademarks depends
entirely upon their usage’”) (quoting Palm Bay, 73 USPQ2d at 1693).
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However, third-party registrations alone may be relevant, in the manner of
dictionary definitions, “to prove that some segment of the [marks] has a normally
understood and well recognized descriptive or suggestive meaning, leading to the
conclusion that that segment is relatively weak.” Juice Generation, 115 USPQ2d at
1675 (internal quotation marks omitted). See also Jack Wolfskin, 116 USPQ2d at
1136. The foregoing evidence therefore impacts the conceptual strength of “style”
formative marks. The fact that a number of “style” formative terms have been
registered for use in connection with clothing, fashion accessories, jewelry, household
goods, and services related to selling these goods indicates that “style” in this context
suggests the goods are fashionable or distinctive. Thus, we agree with Applicant that
“style” formative marks have some conceptual weakness in association with clothing,
fashion accessories, jewelry, household goods, and services related to selling these
goods. See Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame
varies along a spectrum from very strong to very weak).
None of the cited third-party registrations, however, consist solely of the term
“style.” All of the marks listed by Applicant—including Registrant’s mark—have
other matter besides the term “style” to distinguish them from each other. Only
Applicant’s Registrant’s mark include both of the terms “style” and “buy.” In other
words, of all the listed “style” formative marks, Applicant’s mark and the cited mark
are the most similar.
Serial No. 87517030
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Nevertheless, we find the cited mark has some inherent weakness, but we must
treat the mark at worst as “highly suggestive” because it is registered on the Principal
Register without a disclaimer of or claim of acquired distinctiveness. Fiesta Palms
LLC, 85 USPQ2d at 1363. Moreover, even weak marks are entitled to protection
against confusion. See Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010);
see also King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
109 (CCPA 1974).
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s mark and the mark in the cited registrations in their entireties, taking
into account their appearance, sound, connotation and commercial impression.
DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay 73 USPQ2d at 1692.
The emphasis of our analysis must be on the recollection of the average purchaser
who normally retains a general, rather than specific, impression of trademarks.
Applicant mark is STYLEBUY in standard characters. The cited mark is STYLE
BUYS, also in standard characters. The marks are virtually identical, the only
differences between them being that Applicant’s mark is the singular form of
Registrant’s mark, and is a compound term, whereas Registrant’s mark includes a
space between the words. Because the absence of an “S” from the term BUY in
Applicant’s mark does nothing to distinguish its meaning from the meaning conveyed
by the cited mark, other than making it singular, it is a distinction with very little, if
Serial No. 87517030
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any, material difference. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d
1347, 1355 (TTAB 2014) (the singular and plural forms of SHAPE are essentially the
same mark) (citing Wilson v. Delaunay, 245 F.2d 877, 878, 114 USPQ 339, 341 (CCPA
1957) (no material difference between the singular and plural forms of ZOMBIE such
that the marks were considered the same mark). Similarly, removing a space between
the terms STYLE and BUY is essentially irrelevant, because the marks still convey
the same commercial impression, of a fashionable purchase or purchases. See e.g.,
Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d
1576, 222 USPQ 665 (Fed. Cir. 1984) (finding STOCKPOT and STOCK POT
confusingly similar); In re Best W. Family Steak House, Inc., 222 USPQ 827, 827
(TTAB 1984) (BEEFMASTER and BEEF MASTER found “practically identical”).
Obviously, Applicant’s removal of a space between the words and Registrant’s
pluralization of BUYS barely change the appearance or sound of the marks, and thus
they are highly similar, indeed almost identical, in appearance, sound, connotation
and commercial impression. This factor therefore not only weighs heavily in favor of
finding a likelihood of confusion, but also reduces the degree of similarity between
the goods and services required to support a finding of likelihood of confusion. In re
Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); Time Warner
Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); and In re Opus One Inc.,
60 USPQ2d 1812, 1815 (TTAB 2001).
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C. The nature and similarity or dissimilarity of the goods, the established, likely-
to-continue trade channels, and the classes of purchasers.
We next consider the similarity of Applicant’s services and Registrant’s goods and
services, keeping in mind that the goods and services of the parties need not be
identical or even competitive to find a likelihood of confusion. See On-line Careline
Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000).
The respective goods and services need only be “related in some manner and/or if the
circumstances surrounding their marketing [be] such that they could give rise to the
mistaken belief that [they] emanate from the same source.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
We need not find similarity as to each and every service listed in an Applicant’s
identification. It is sufficient for a refusal based on likelihood of confusion that
relatedness is established for any item encompassed by the identification of services
in a particular class in the application. 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).
As noted above, Applicant’s services include “On-line wholesale store services
featuring clothing, accessories, lifestyle, and home products through a global or other
computer network technologies.” Registrant’s goods and services include: accessories
Serial No. 87517030
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such as backpacks, luggage, purses, tote bags, umbrellas, and wallets; a variety of
clothing articles; and retail store services featuring clothing. Applicant argues that
her services and Registrant’s goods and services are different because “Applicant
deals in the wholesale realm of fashion, accessories, and lifestyle products. By
contrast, the registered marks have nothing to do with wholesale services. Indeed,
the Registered Mark associated with Class 35 specifically references retail services.
This difference is crucial.”16
This argument is unpersuasive. The Examining Attorney submitted numerous
active, use-based, third-party registrations demonstrating that a number of entities
have registered a single mark for clothing and accessories, as well as for retail and
wholesale store services selling these goods. A number of these registrations also
include the sale of home products. By way of illustration, we note the following:17
Mark Reg. No. Relevant Goods or Services
Flower design 4702823 Jackets; Scarves; Women’s clothing, namely,
shirts, dresses, skirts, blouses; and
On-line retail store services featuring clothing;
Retail apparel stores; Wholesale store services
featuring clothing
BELLA TU 4879458 Women’s clothing, namely, tunics, caftans,
shirts, dresses, blouses, pants; and
On-line retail store services featuring clothing;
On-line wholesale store services featuring
clothing
MR PRINTS and
design
4905892 [A]pparel and clothing, namely, shirts, shoes,
pants, jackets, blouses, tank tops, socks,
dresses, scarfs, and belts; footwear; and
headgear, namely, hats, head wraps and
bandanas; and

16 Applicant’s Br., p. 7, 12 TTABVUE 12.
17 Office Action of September 29, 2017; Office Action of April 3, 2019; Office Action of October
7, 2019.
Serial No. 87517030
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Mark Reg. No. Relevant Goods or Services
[W]holesale store services featuring clothing
and apparel; retail store services featuring
clothing and apparel
STYLZOO 4812992 A variety of clothing articles; and
On-line wholesale and retail store services
featuring clothing and apparel
HEMP QUEEN 2636207 [C]lothing, namely shoes, socks, pants, skirts,
dresses, shorts, shirts, tops, jackets, sweaters,
underwear, bras, scarves, belts and hats made
in whole or substantially in part of hemp; and
[R]etail store, wholesale and online retail store
services featuring clothing made in whole or
substantially in part of hemp
PRETTIES 5163219 Retail store services, . . . all featuring clothing,
swimwear, headwear, footwear, leather goods,
bags and home goods; Wholesale store services
featuring clothing, swimwear, headwear,
footwear, leather goods, bags and home goods
IT’S ALL ABOUT
THE O.
2968790 [O]nline wholesale and online retail store
services featuring clothing, shoes, bath and
body products, jewelry, electronics, cookware,
housewares, appliances, furniture, linens,
pillows, decorative accessories
SEASBUSINESS 5258767 Online wholesale and online retail store
services featuring clothing, foods, beverages,
fruits, health products, electronics, carrying all
goods together
THE HOUSE OF
JANE
5303076 Retail and Wholesale store services featuring
clothing, nutritional supplements, soft drinks,
household appliances, vaping accessories,
jewelry, and furniture
CAPELLI 3425726 Retail stores featuring fashion, accessories,
clothing, jewelry, toys, cosmetics, home
fashions, handbags, and sunglasses; Wholesale
stores featuring fashion, accessories, clothing,
jewelry, toys, cosmetics, home fashions,
handbags, and sunglasses
ORGANICALLY
GROWN and design
4230338 Wholesale and retail store services and on-line
retail and wholesale store services featuring
goods which are all made from organically
grown materials, namely, men’s, women’s and
children’s clothing, footwear, headgear,
apparel, fashion accessories, and a variety of
Serial No. 87517030
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Mark Reg. No. Relevant Goods or Services
goods, home furnishings, stationery and paper
products, personal care accessories, toys
TRAILCREST 5746295 Retail stores services, wholesale stores
services, . . . all of the aforesaid featuring bags
and accessories therefor, clothing and
accessories therefor, footwear, headwear,
bedding and linens, towels and pet products
MASAKALI 5789581 On-line wholesale and retail store services
featuring kitchen accessories and products,
sporting goods, clothing, Jeans, hoodies, ladies
cloths [sic], men cloths [sic], foot wear and
headwear, furniture, cutleries, paper plates
and cups, kitchen knives, dinning set and
accessories, kitchen goods holders, Electronics,
lawn and patio goods, office supplies, toys
JOLIMOLI 5813649 [O]nline retail and wholesale store services
featuring a wide variety of clothing, toys,
bedding, household products, skincare and
grooming products, and fashion accessories for
babies and children

As a general proposition, although use-based third-party registrations alone are
not evidence that the marks shown therein are in use or that the public is familiar
with them, they nonetheless may have probative value to the extent they may serve
to suggest that the goods and services are of a kind that emanate from a single source.
See In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
Mustard Co., Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
Here, the foregoing evidence demonstrates that consumers may expect to find both
Applicant’s wholesale store services in the field of fashion, accessories, lifestyle and
home products, and Registrant’s bags, umbrellas, wallets, clothing, or retail store
services featuring clothing, to be offered under the same mark. For example,
Serial No. 87517030
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consumers familiar with Registrant’s clothing and accessories could think Applicant’s
wholesale store services featuring clothing, accessories, lifestyle, and home products
were related. It is well recognized that confusion may be likely to occur from the use
of the same or similar marks for goods, on the one hand, and for services involving
those goods, on the other. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128
USPQ2d 1047, 1052 (Fed. Cir. 2018) (“[W]e have held that confusion is likely where
one party engages in retail services that sell goods of the type produced by the other
party[.]”); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir.
1988) (holding BIGG’S (stylized) for retail grocery and general merchandise store
services and BIGGS and design for furniture likely to cause confusion); In re United
Serv. Distribs., Inc., 229 USPQ 237 (TTAB 1986) (holding similar marks used in
connection with distributorship services in the field of health versus beauty aids and
skin cream likely to cause confusion).
Similarly, consumers familiar with Registrant’s retail store services featuring
clothing could think Applicant’s wholesale store services featuring clothing,
accessories, lifestyle, and home products are related as well. This is supported by the
following five business articles submitted by the Examining Attorney showing that
“that wholesalers and retailers of clothing and accessories now compete directly with
one another, as more and more wholesalers also sell directly to consumers through
their own retail store websites.”18
 How The Digital Economy Is Blurring Industry Boundaries
(digitalistmag.com): this article discusses how the digital economy is

18 Examining Attorney’s Br., 14 TTABVUE 16; Office Action of October 7, 2019, TSDR 58-99.
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blurring the distinctions between traditional channels of trade, such as
wholesale and retail channels. The article states that consumer product
manufacturers “are moving away from wholesale distribution in favor of
selling direct – either online or in brick-and-mortar retail stores – enabling
a more personalized experience.”
 The Future Of Retail Could Be In The Hands Of The Brand Manufacturers
(blog.wiser.com): this article discusses how “[t]he line between retailers and
manufacturers is becoming blurred.” The article states that “the best way
to maximize reach is to sell through both your own website and retail
channels. Many . . . already sell on both retail and direct channels, typically
online . . . [n]ow is the time to take more ownership of your brand and start
selling directly to consumers.”
 Should Wholesale Brands Start Selling Direct-To-Consumer? (tinuiti.com):
this article discusses the emergence of direct-to-consumer retail channels
as a supplement to traditional wholesale channels. The article states that
“channels like Facebook, Google Shopping, Pinterest, and of course Amazon
– offer traditional wholesale brands an opportunity to expand into the world
of selling direct to consumer.”
 How Manufacturers Sell Directly To Consumers (thebalancesmb.com): this
article discusses how “[t]he Internet is changing how wholesalers do
business.” The article states that “with the rise of the internet and small
businesses leveraging websites, that [wholesale] business model is evolving
rapidly. Manufacturers are increasingly skipping wholesalers altogether
and are selling directly to their consumers . . . . With same day shipping
and overnight service, getting a special item or garment can be done from
the comfort of a couch, making it more difficult for traditional wholesalers
and retailers to attract customers.”
 Retailers Beware: More Companies Now Selling Direct (forbes.com): this
article explains that wholesalers are changing to a direct-to-consumer
business model, “a trend that is largely being driven by the Internet.” The
article concludes that “[b]rick-and-mortar retailers are already under
attack by Amazon. Now, retailers must also worry about their wholesalers
selling direct via the Internet. . . . [Wholesalers] will follow the customers
and the money.”
Applicant also seeks to distinguish her services from Registrant’s by arguing that
her services are offered to “sophisticated wholesale purchasers”19 whereas

19 Applicant’s Br., p. 11, 12 TTABVUE 16.
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Registrant’s goods and services are directed to “young girls.”20 This argument is
unavailing. In making our determination regarding the relatedness of the goods and
services, we must look to them as identified in the application and cited registrations
which contain no limitations as to consumer sophistication or age. See Stone Lion
Capital, 110 USPQ2d at 1162 (quoting Octocom Sys., Inc. v. Hous. Computs. 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.”)).
Similarly, Applicant’s argument that “the holder of the Registered Marks appears
to have discontinued its use of the mark on its website”21 also is unavailing. Such an
argument constitutes an impermissible collateral attack on the cited registrations.
As explained above, under Trademark Act Section 7(b), a certificate of registration is
prima facie evidence of the validity of the registration. 15 U.S.C. § 1057(b). If an
applicant believes a cited registration is abandoned, those arguments will not be
heard in an ex parte proceeding; instead the applicant must petition to cancel the
registration. See In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997); Fiesta Palms, 85 USPQ2d at 1363; TRADEMARK MANUAL OF EXAMINING
PROCEDURE § 716.02(a) (October 2018).

20 Id.
21 Id. at 12, 12 TTABVUE 17.
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Regarding channels of trade and classes of consumers, we base our determination
regarding the similarities between the channels of trade and classes of purchasers on
the goods and services as they are identified in the application and the cited
registrations. Octocom, 16 USPQ2d at 1787; Canadian Imperial Bank v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). Applicant’s application and
the cited registrations contain no limitation as to channels of trade or classes of
customers, and we decline to read any such limitation into them. Squirtco, 216 USPQ
at 940. The only evidence relating to the trade channels through which the goods and
services at issue travel are business articles submitted by the Examining Attorney
and the third-party registrations discussed above. This evidence shows that
Applicant’s wholesale store services featuring clothing, accessories, lifestyle, and
home products, and Registrant’s retail clothing and accessories store services, may
be offered via the same channels of trade to all relevant classes of purchasers, i.e.,
individuals interested in clothing, accessories, lifestyle, and home products. That is,
the respective goods and services, as identified, would be provided in the same or at
least overlapping channels of trade to the same or overlapping classes of purchasers.
The DuPont factors regarding the similarity of the goods and services, channels of
trade, and classes of purchasers favor a finding of a likelihood of confusion.
D. Conclusion
We find Applicant’s mark is highly similar to the cited mark, outweighing any
conceptual weakness. Applicant’s services and Registrant’s goods and services are
related, and the channels of trade and classes of consumers are overlapping, if not
the same. We conclude that there is a likelihood of confusion between Applicant’s
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mark, STYLEBUY, and the cited mark, STYLE BUYS, for the respective goods and
services.

Decision: The refusal to register Applicant’s mark is affirmed.