CUUP, Inc.

Trademark Trial and Appeal Board

Jul 26, 2021

88326435 (T.T.A.B. Jul. 26, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Oral Hearing: July 13, 2021 Mailed: July 26, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cuup, Inc.
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Serial No. 88326435
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Jeffrey L. Snow of Pryor Cashman LLP,
for CUUP, Inc.
Laura Taraban, Trademark Examining Attorney Law Office 127,
Mark Pilaro, Managing Attorney.
_____

Before Wolfson, Kuczma, and Hudis,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
CUUP, Inc. (“Applicant”) seeks registration on the Principal Register of the
standard character mark CUUP BODY TALK for:
“Providing a website featuring non-downloadable articles
in the fields of women’s apparel, undergarments, fitness,
nutrition and wellness” in International Class 41, and
“Computer services, namely, creating an on-line
community for registered and unregistered users to
participate in discussions, get feedback from their peers,
form virtual communities, upload photographs, and engage
in social networking services in the fields of women’s
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apparel, fitness, nutrition and wellness” in International
Class 42.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied
to the goods identified in the application, so resembles the marks BODYTALK (in
standard characters) and , both marks registered for, inter alia,
“Providing healing services, namely, holistic and alternative healing therapies;
providing information through an electronic communications network in the fields of
holistic and alternative healing techniques” in International Class 44, as to be likely
to cause confusion, to cause mistake, or to deceive prospective consumers.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.

1 Application Serial No. 88326435 was filed on March 5, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s bona fide intent to use the mark
in commerce.
2 Reg. No. 4729765, for the standard character mark, issued May 5, 2015; combined
Trademark Act Sections 8 & 15 Declaration accepted and acknowledged.
Reg. No. 4702032, for the composite mark, issued March 17, 2015; combined Trademark Act
Sections 8 & 15 Declaration accepted and acknowledged.
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I. Evidentiary Objection
For the first time with its Reply Brief, Applicant submitted a copy of its CUUP
registration (Reg. No. 6180524) and “evidence of third-party uses of BODY and
TALK.” 13 TTABVUE 4-5.
Trademark Rule 2.142(d) provides, in pertinent part:
(d) The record in the application should be complete prior
to the filing of an appeal. The Trademark Trial and Appeal
Board will ordinarily not consider additional evidence filed
with the Board by the appellant or by the examiner after
the appeal is filed.
This is especially true with respect to evidence submitted for the first time with a
reply brief, to which the examining attorney has no opportunity to respond. In re City
of Houston, 101 USPQ2d 1534, 1536-1537 (TTAB 2012); In re Zanova Inc., 59
USPQ2d 1300, 1302 (TTAB 2001) (“By attempting to introduce evidence with its reply
brief, applicant has effectively shielded this material from review and response by
the Examining Attorney.”).
At the oral hearing, the Examining Attorney objected to the admission of the
evidence attached to Applicant’s Reply Brief. However, the fact that the Board held
an oral hearing in this case did not thereby provide the requisite opportunity for the
Examining Attorney to object, the failure of which would have allowed for the
admissibility of the evidence. In any event, the Examining Attorney did object to the
evidence at the oral hearing and the objection is sustained. Moreover, the Examining
Attorney’s objection was not waived by her answering questions about the evidence
that were posed to her by the panel during the oral hearing.
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If Applicant had wished to submit additional evidence after filing its appeal, it
should have requested a remand for that purpose, which -- if granted -- would have
given the Examining Attorney an opportunity to examine the new evidence and
respond to it appropriately. Trademark Rule 2.142(d). Because Applicant failed to do
so, we find the evidence submitted with Applicant’s reply brief “manifestly untimely,”
and we have not considered it. City of Houston, 101 USPQ2d at 1537 (citing In re
Petroglyph Games Inc., 91 USPQ2d 1332, 1334 (TTAB 2009)).
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination under Section 2(d) is based on an analysis of all
probative facts in the record that are relevant to the likelihood of confusion factors
set forth in 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).
The Board considers only those DuPont factors for which there is evidence and
argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed.
Cir. 2019); see also Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d
994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020) (“Not all DuPont factors are relevant in
each case . . . .”). Two key considerations are the similarities between the marks and
the relatedness of the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340,
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71 USPQ2d 1944, 1945 (Fed. Cir. 2004); 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.”).
We focus our analysis on the registered standard character mark BODYTALK
identified in Registration No. 4729765, because if likelihood of confusion is found as
to this registration, it is unnecessary to consider the other cited registration for
. Conversely, if likelihood of confusion is not found as to the standard character
mark, we would not find likelihood of confusion as to the composite mark. See, e.g.,
In re St. Julian Wine Co., 2020 USPQ2d 10595 (TTAB 2020); In re I-Coat Co., LLC,
126 USPQ2d 1730, 1734 (TTAB 2018); In re Max Capital Grp. Ltd., 93 USPQ2d 1243,
1245 (TTAB 2010).
A. Similarity of the Marks
Under the first DuPont factor, we compare the marks “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imps. v.
Veuve Cliquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “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), aff’d mem., 777 F. App’x. 516
(Fed. Cir. 2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess
not whether the marks can be distinguished in a side-by-side comparison, but rather
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whether their overall commercial impressions are so similar that confusion as to the
source of the goods and services offered under the respective marks is likely to result.
Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018)
(citing Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713,
1721 (Fed. Cir. 2012); see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551
(TTAB 2012). The emphasis “is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks or service
marks.” Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, 2020 USPQ2d 10914,
*18 (TTAB 2020); see also Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d
377409, *6 (TTAB 2019).
Applicant’s mark is CUUP BODY TALK. The cited registered mark is
BODYTALK. Although Registrant’s mark combines the two words “body” and “talk”
while Applicant displays the phrase as two words, the distinction is immaterial.
When a compound term comprises two ordinary English words, consumers generally
recognize them as such, rather than considering the combination to be a fanciful or
arbitrary term with no meaning at all. As a result, whether such a mark appears as
one word or two often has little or no effect on consumers’ impression of it. See
Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD
and SEAGUARD “essentially identical”). Consumers who encounter Registrant’s
mark would readily recognize its constituent terms, “body” and “talk.”
But for the immaterial distinction of the spacing between the words in Applicant’s
mark, its CUUP BODY TALK mark completely appropriates the cited registered
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mark BODYTALK. “Marks have frequently been found to be similar where one mark
incorporates the entirety of another mark, as is the case here.” Tivo Brands LLC v.
Tivoli, LLC, 129 USPQ2d 1097, 1115 (TTAB 2018); see also Stone Lion Capital
Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 1322 110 USPQ2d 1157, 1161
(Fed. Cir. 2014) (affirming Board’s finding that the mark STONE LION CAPITAL
incorporated the entirety of the registered marks LION CAPITAL and LION, that
the noun LION was the dominant part of both parties’ marks, and that confusion was
likely).
Applicant argues that “the dominant portion of Applicant’s Mark is necessarily
CUUP,” and that the term CUUP in the mark “is sufficient to dispel any likelihood of
confusion between the marks.” Applicant’s Brief, 10 TTABVUE 10. The Examining
Attorney disagrees: “Adding a house mark to an otherwise confusingly similar mark
will not obviate a likelihood of confusion under Section 2(d).” Examining Attorney’s
Brief, 12 TTABVUE 6. Applicant does not dispute that CUUP “is a house mark of
Applicant,” Reply Brief, 13 TTABVUE 2, but contends that it is “itself a strong mark
and the primary focus of the consumer’s attention.” Id.
While we must consider the marks in their entireties, as purchasers or prospective
purchasers would see them, Cai v. Diamond Hong, 127 USPQ2d at 1801, one feature
of a mark may make a greater impression on these purchasers than another part,
and it is appropriate to give more weight to the dominant feature in determining the
commercial impression made by the mark. TiVo Brands, 129 USPQ2d at 1116 (“There
is nothing improper in stating that, for rational reasons, more or less weight has been
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given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.”) (quoting In re Nat’l Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Whether the addition of the term CUUP in Applicant’s mark distinguishes it from
Registrant’s mark depends on the strength of the other terms and the overall
commercial impression of the mark as a whole. “It has long been held that the
addition of a trade name or house mark to a registered mark does not generally avoid
confusion.” In re Fiesta Palms, LLC, 85 USPQ2d 1360, 1364 (TTAB 2007) (“Indeed, a
consumer who has been told about the advantages of registrant’s MVP casino services
is likely to believe that [applicant’s] CLUB PALMS MVP casino services is simply the
now identified source of the previously anonymous MVP casino services.”); In re
Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s VANTAGE
TITAN mark for MRI diagnostic apparatus, and registrant’s TITAN mark for medical
ultrasound device, likely to cause confusion); In re Christian Dior, S.A., 225 USPQ
533, 534 (TTAB 1985) (“such addition may actually be an aggravation of the
likelihood of confusion as opposed to an aid in distinguishing the marks so as to avoid
source confusion;” LE CACHET DE DIOR confusingly similar to the registered mark
CACHET).
On the other hand, “where there are some recognizable differences in the asserted
conflicting product [or service] marks or the product [or service] marks in question
are highly suggestive or merely descriptive or play upon commonly used or registered
terms, the addition of a housemark and/or other material to the assertedly conflicting
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product [or service] mark has been determined sufficient to render the marks as a
whole sufficiently distinguishable.” Christian Dior, 225 USPQ at 534; see also Top
Tobacco LP v. North Atlantic Operating Co., 101 USPQ2d 1163, 1174 (TTAB 2011)
(finding “addition of the distinctive house mark ZIG ZAG to the highly suggestive
phrase [CLASSIC] is sufficient in this case to outweigh the similarities” between
CLASSIC CANADIAN and ZIG ZAG CLASSIC AMERICAN BLEND; both marks for
smoking tobacco).
In this case, the common term in Applicant’s and Registrant’s marks, BODY
TALK, (with or without a space between the words) is not “so highly suggestive that
the inclusion of [Applicant’s] house mark would create significant differences in the
marks’ appearance, pronunciation, meaning, and commercial impression,” such that
the inclusion of Applicant’s house mark CUUP sufficiently distinguishes the marks.
Fiesta Palms, 85 USPQ2d at 1366. As in Fiesta Palms, we find that purchasers
familiar with the cited registered mark BODYTALK are likely to assume that CUUP
simply identifies what had previously been an anonymous source of information
provided over the Internet in the fields of holistic and alternative healing techniques,
and that Registrant likely would be extending its services to include
non-downloadable articles in the fields of women’s fitness, nutrition and wellness, as
well as creating an on-line community in the fields of women’s fitness, nutrition and
wellness.
Inclusion of Applicant’s house mark is a difference between the marks, but we find
that it does not result in marks that are sufficiently dissimilar for likelihood of
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confusion purposes. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1260 (Fed. Cir. 2010) (presence of an additional term in a mark “does not necessarily
eliminate the likelihood of confusion if some terms are identical.”) (citing China
Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d 1123 (Fed. Cir. 2007)).
Applicant further argues that the term BODY TALK (as one word or two) in each
mark projects a different connotation, thereby eliminating a likelihood of confusion.
Applicant alleges that the meaning of the cited registered mark is “about a body’s
inner-talk and conveys the notion that the Registrant’s services consist of medicinal
practices using the inner connection between one’s body parts as a means of healing,”
10 TTABVUE 8, whereas “the idea conveyed by Applicant’s use of BODY TALK,
namely external and honest conversations among women about their bodies, is
entirely inapposite to the medicinal notion of the ‘talk’ or interaction between a
organs as a means of detecting and treating disease.” 10 TTABVUE 10. We reject
Applicant’s argument as improperly based on extrinsic evidence, in this case portions
of Registrant’s website:3

3 Submitted with Applicant’s November 18, 2019 Office Action at TSDR 18.
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.
It is well-established that registrability is based on the marks and the services as
recited in an applicant’s application and the cited registration. In re FCA US LLC,
126 USPQ2d 1214, 1217 (TTAB 2018) (“Evidence of actual marketplace usages that
seeks to limit or alter the usages encompassed by the marks, goods and services, or
usages listed in the application and registration are not considered in assessing
likelihood-of-confusion in the registration context.”); see also In re Midwest Gaming
& Ent. LLC, 106 USPQ2d 1163, 1165 (TTAB 2013); In re La Peregrina Ltd., 86
USPQ2d 1645, 1646 (TTAB 2008) (“it is the identification of goods that controls, not
what extrinsic evidence may show about the specific nature of the goods”).
The scope of protection to which each mark is, or would be, entitled is determined
by the registration thereof, pursuant to Trademark Act Section 7(b) (federal
trademark registration on the Principal Register “shall be prima facie evidence … of
the owner’s exclusive right to use the registered mark in commerce on or in connection
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with the goods or services specified in the certificate… .”). 15 U.S.C. §1057(b). Because
the scope of the recitation in a registration determines the scope of the post-grant
benefit, we do not consider extrinsic evidence of how the mark is used, which may
change at any time. This is not a case where the recitation of services in either
Applicant’s application or Registrant’s registration is technical or vague and requires
clarification. See, e.g., Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
1399, 1410 (TTAB 2010) (citing In re Trackmobile, 15 USPQ2d 1152, 1154 (TTAB
1990)) (extrinsic evidence of use may be considered to determine the meaning of the
identification).
Because the marks BODYTALK and CUUP BODY TALK are similar in sight,
sound, meaning and overall commercial impression, the first DuPont factor favors a
finding of likelihood of confusion.
B. Relatedness of the Services
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,” In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir 2018) (quoting DuPont,
177 USPQ at 567). The goods and services need not be identical, but “need only be
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83
USPQ2d 1715, 1724 (TTAB 2007)).
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Applicant’s recited services are directed to providing a website, and an on-line
community, in the fields of, inter alia, women’s fitness, nutrition and wellness. The
cited registration includes the services of providing a website in the fields of holistic
and alternative healing techniques. The Examining Attorney argues that Applicant’s
services are broad enough to cover Registrant’s services: “[Applicant] uses broad
wording to describe its services as providing online communities and a website
featuring articles in the fields of nutrition and wellness, which presumably
encompass all services of the type described, including Registrant’s narrower
services….” Examining Attorney’s Brief, 12 TTABVUE 11-12. Applicant, responds
that the services are “highly distinguishable by their nature,” inasmuch as its
primary business is “selling custom-sized bras and undergarments,” and that while
its e-commerce website provides a forum “with information about women’s bodies and
image issues,” Registrant’s services are “designed to optimize the body’s internal
communications.” Applicant’s Brief, 10 TTABVUE 12-13. Applicant points to
Registrant’s advertising, which states: “Each system, cell, and atom of the body is in
constant communication with each other.” 10 TTABVUE 13.
As we have stated, our determination regarding the similarity of the services is
based on the services as they are identified in the application and registration. In re
Detroit Athletic, 128 USPQ2d at 1052 (citing In re i.am.symbolic, LLC, 866 F.3d 1315,
123 USPQ2d 1744, 1749 (Fed. Cir. 2017); Stone Lion, 110 USPQ2d at 1162. Applicant
may not rely on portions of Registrant’s website to impermissibly narrow the scope of
the services in the cited registration. In re Midwest Gaming, 106 USPQ2d at 1165; In
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re La Peregrina, 86 USPQ2d at 1646; In re Bercut-Vandervoort & Co., 229 USPQ2d
763, 764 (TTAB 1986). Any specific differences between the actual nature of the
services are irrelevant in our analysis.
We agree with the Examining Attorney that Applicant’s services as recited
encompass Registrant’s services and are thus legally identical. That Applicant’s
services are directed to women’s apparel, undergarments, fitness, nutrition and
wellness does not avoid the overlap, inasmuch as Registrant’s services are marketed
and available to all consumers regardless of age, gender, or other attributes. See, e.g.,
Octocom Sys., Inc. v. Houst. 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 sales of the goods are directed.”); Recot, Inc. v. M.C. Becton, 214 F.3d 1332 , 54
USPQ2d 1895, 1898 (Fed. Cir. 2000) (“Even if the goods in question are different from,
and thus not related to, one another in kind, the same goods can be related in the
mind of the consuming public as to the origin of the goods. It is this sense of
relatedness that matters in the likelihood of confusion analysis.”).
The second DuPont factor regarding the similarity or dissimilarity of Applicant’s
and Registrant’s services favors a finding of likelihood of confusion.
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C. Trade Channels and Classes of Consumers
The third DuPont factor considers “the similarity or dissimilarity of established,
likely-to-continue trade channels.’” DuPont, 177 USPQ at 567; see also Stone Lion,
110 USPQ2d at 1161-63.
Because there are no limitations as to channels of trade or classes of purchasers
in the descriptions of Applicant’s or Registrant’s services, and the services identified
in the application and cited registration are legally identical, we find the channels of
trade and classes of purchasers to be the same. Am. Lebanese Syrian Assoc. Charities
Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011); see also In
re Viterra Inc., 101 USPQ2d at 1908 (finding Board entitled to rely on this legal
presumption in determining likelihood of confusion); DeVivo v. Ortiz, 2020 USPQ2d
10153, *13 (TTAB 2020) (applying presumption to identical and closely related goods)
(citing Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001,
1005 (Fed. Cir. 2002)).
The third DuPont factor favors a finding of likelihood of confusion.
D. Consumer Sophistication
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” Stone Lion,
110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). Applicant argues that
“because of the highly invasive and personal nature of medicine and treating one’s
body from disease, consumers of Registrant’s services are highly likely to scrutinize
the qualifications and characteristics as to the origin and provider of the services.” 10
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TTABVUE 14. Likewise, “Applicant’s consumers, too, may conduct careful research
as to the source of CUUP products and its tangential services to address concerns
about fabric, fit, sustainability etc., . . . .” Id.
As there is no evidence supporting these arguments, we find them not well-taken.
See Cai v. Diamond Hong, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-
Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no substitute
for evidence.”)). Further, consumers for bras and undergarments include
sophisticated as well as unsophisticated buyers who would not necessarily exercise
heightened care, and Board precedent requires our decision to be based “on the least
sophisticated potential purchasers.” Stone Lion, 110 USPQ2d at 1163. Moreover, even
careful purchasers can be confused as to source where similar marks are used on
legally identical goods. See In re Rsch. Trading Corp., 793 F.2d 1276, 230 USPQ 49,
50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434
F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)) (“Human memories even of
discriminating purchasers … are not infallible.”).
The fourth DuPont factor is neutral in our analysis of whether confusion is likely.
III. Summary
We find there is a likelihood of confusion as to the source of Applicant’s services
bearing the mark CUUP BODY TALK when encountered by relevant purchasers
familiar with Registrant’s BODYTALK services. The marks are similar in sight,
sound, meaning and overall commercial impression. The services are legally identical
and are presumed to travel through similar trade channels to the same classes of
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prospective purchasers. Consumers familiar with the registered mark BODYTALK
for “Providing healing services, namely, holistic and alternative healing therapies;
providing information through an electronic communications network in the fields of
holistic and alternative healing techniques” who subsequently encounter Applicant’s
CUUP BODY TALK mark for “providing a website featuring non-downloadable
articles” and “creating an on-line community” in the fields of women’s fitness,
nutrition and wellness could easily believe, mistakenly, that Applicant’s services are
affiliated with Registrant’s services.
Decision: The refusal to register Applicant’s mark CUUP BODY TALK under
Trademark Act Section 2(d) is affirmed.