Neolith Distribution, S.L.

Trademark Trial and Appeal Board

Jul 29, 2020

87708759 (T.T.A.B. Jul. 29, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 29, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Neolith Distribution, S.L.
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Serial No. 87708759
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Vivian Ortiz-Ponce of Marcas Estados Unidos,
for Neolith Distribution, S.L.
Khanh M. Le, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Acting Managing Attorney.
_____

Before Wolfson, Coggins and Hudis,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Neolith Distribution, S.L. (“Applicant”) seeks registration on the Principal
Register of the mark depicted below

for
Home and Offices furniture.[sic] kitchen furniture;
bathroom furniture; outdoor furniture; mirrors being
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looking glasses; furniture frames; picture frames.[sic]
Ceramic knobs and glass knobs; Ceramic pulls; Ceramic
pulls for cabinets, drawers and furniture; Containers for
transport, not of metal; Dining chairs; Dining room tables;
Dining tables; Door handles, not of metal; Door knockers
not of metal; Door nameplates, not of metal; Fireplace
screens; Frames for paintings; Furniture; Furniture for
displaying goods; Furniture in the nature of sectionals;
Furniture partitions; Furniture parts; Furniture, namely,
showcases; Furniture, namely, wall units; Gate hardware,
namely, non-metal gate latches; Kitchen cabinets; Kitchen
furniture, namely, ready to assemble mobile kitchen
islands; Kitchen-type cabinets for outdoor use; Marble
tables; Mirror frames; Office furniture; Porcelain
doorknobs; Porcelain knobs; Porcelain pulls; Sink liners;
Window fasteners, not of metal; Window fittings, not of
metal; Window stops, not of metal or rubber; Work
benches; Work surfaces; Bamboo blinds; Bathroom
furniture; Bedroom furniture; Book holders; Buffets;
Cabinets; Cabinets being furniture for kitchen; Clips, not
of metal, for cables and pipes; Custom furniture;
Decorative window finials; Entertainment centers; Fabric
window blinds; Fitted kitchen furniture; Fitted fabric
furniture covers; Fitted furniture covers not of fabric;
Freestanding partitions; Furniture frames; Furniture
moldings; Furniture partitions of wood; Furniture
primarily of metal, namely, mirrors, bed frames, dining
tables, coffee tables, end tables, desks, display cases,
shelving, dog gates, and baby gates; Hardware, namely,
non-metal brackets for general use; Indoor window blinds
being shades; Interior window blinds; Interior window
coverings, namely, vertical and horizontal louvers; Interior
window shades; Interior textile window blinds; Library
furniture; Living room furniture; Lounge furniture; Mats,
removable, for sinks; Metal indoor window blinds; Mirrors;
Moldings for picture frames; Movable wall partitions; Non-
metal cable clips; Non-metal clamps; Non-metal door bolts;
Non-metal door fittings; Non-metal door latches; Non-
metal door trims; Non-metal fasteners, namely, bolts,
nails, rivets, screws; Non-metal fastening anchors; Non-
metal gate stops; Non-metal hanging closet organizers for
clothing; Non-metal knobs; Non-metal name plates; Non-
metal window trims; Non-metal cable clamps; Non-metal
clips for fastening pairs of socks for laundering; Non-metal
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mounting brackets for general use; Non-metal pulls; Non-
metal sash fasteners for windows; Non-metal threaded
fasteners; Nonmetal door and window hardware, namely,
keys, guards and clasps; Picture frames; Plastic name
badges; Seating furniture; Table tops; Upholstered
furniture
in International Class 20.1
The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 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 registered mark NEOLITH
(in standard characters) for
Ceramic sculptures, vases, vessels, bowls, plates and pots;
Coffee mugs; Coffee cups, tea cups and mugs; Mug trees;
Mugs; Mugs of precious metal; Mugs, not of precious metal;
Tumblers for use as drinking glasses; Beer mugs; Coffee
services of ceramic; Cups and mugs; Drinking glasses,
namely, tumblers; Earthenware mugs; Glass mugs;
Porcelain mugs
in International Class 20,2 as to be likely to cause confusion, to cause mistake, or to
deceive prospective consumers.

1 Application Serial No. 87708759 filed on December 5, 2017, under Trademark Act Section
1(a), 15 U.S.C. § 1051(a), based upon Applicant’s allegation of March 1, 2011, as its date of
first use of the mark and March 31, 2011, as the date the mark was first used in commerce.
The description of the mark reads: “The mark consists of the word ‘NEOLITH’ in stylized
letters.” Color is not claimed as a feature of the mark.
The application was originally filed for additional goods in Class 19. The Examining
Attorney noted in her September 7, 2018 Office Action that the refusal applied to Class 20
only. On November 4, 2019, the application was divided and child Application Serial No.
87982242 containing the Class 19 goods was created. The child application issued on
February 25, 2020, under Reg. No. 5993551.
2 Registration No. 5544316, issued August 21, 2018.
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When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Applicant and the Examining Attorney
filed briefs. We affirm the refusal to register.
I. Likelihood of Confusion
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated 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). 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. 2019). However, “each case must be
decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics
Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
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, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods. See In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
Serial No. 87708759
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which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
In this appeal, the Examining Attorney submitted argument and evidence on the
similarity or dissimilarity of the marks, the relatedness of the goods associated with
the respective marks, and the channels of trade and prospective purchasers therefor.
Applicant fails to address the first DuPont factor regarding the marks, argues that
the goods are unrelated, 9 TTABVUE 8,3 and focuses on the thirteenth DuPont factor
throughout its brief, arguing that the refusal should be reversed because Applicant
owns prior registrations for NEOLITH for the same and related goods.
A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). The Examining Attorney argues that because the cited mark is the term
NEOLITH in standard characters, it could be displayed in the same font style as
Applicant’s mark , making the marks “legally identical in appearance
and identical in sound, meaning and commercial impression.” 11 TTABVUE 6.
Applicant does not argue otherwise. We find the marks to be legally identical and

3 Citations to the record on appeal are to TTABVUE, the docket history system for the
Trademark Trial and Appeal Board. Citations to the prosecution history of Applicant’s
application are to the Trademark Status & Document Retrieval (TSDR) database.
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likely to be pronounced the same, and similar in appearance, connotation, and overall
commercial impression. See In re i.am.symbolic, 123 USPQ2d at 1748 (“Symbolic does
not, and cannot, dispute that the mark, I AM in standard character form, and the
registrants’ marks, I AM in standard character, typed, or stylized form, are
pronounced the same way and, at a minimum, legally identical.”).
The first DuPont factor strongly favors a finding that confusion is likely.
B. Relatedness of the Goods
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration .…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods …] as related enough to cause confusion about the source or origin
of the goods ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed.
Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002)).
The goods 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, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000). They 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 [the goods] … 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)).
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In cases such as this where the applicant’s mark is legally identical to the cited
registered mark, “the degree of relatedness between the respective goods that is
necessary to support a finding that the goods are related under the second du Pont
likelihood of confusion factor is less than it would be if the marks were not identical;
there need be only a viable relationship between the respective goods.” In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1202 (TTAB 2009).
As evidence of product relatedness, the Examining Attorney made of record copies
of pages from seven websites showing, at each site, that the same entity promotes
and offers for sale under the same mark the types of goods identified in Applicant’s
involved application and the cited registration:
 Pottery Barn offers glass vases and dinnerware such as mugs, plates, and
cereal bowls (Registrant’s goods), as well as picture frames and furniture
(e.g., an upholstered sofa, armchair and ottoman) (Applicant’s goods), at
www.potterybarn.com;
 Mikasa offers both a picture frame (Applicant’s goods) and a glass vase
(Registrant’s goods) branded with the MIKASA mark at www.mikasa.com;
 West Elm sells china dinnerware (mugs, plates, bowls, teacup and saucer)
(Registrant’s goods), as well as wall mirrors and upholstered and leather
chairs (Applicant’s goods) at www.westelm.com;
 Restoration Hardware offers a glass vase (Registrant’s goods), an oak
sideboard and a dining table (Applicant’s goods) at
www.restorationhardware.com;
 Williams Sonoma offers a mirror (Applicant’s goods), as well as a ceramic
vessel and a vase (Registrant’s goods) at www.williams-sonoma.com;
 BoConcept offers a vase (Registrant’s goods) and a mirror (Applicant’s
goods) at www.boconcept.com; and
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 CB2 offers a mirror, a picture frame, and a wall-mountable modular shelf
(Applicant’s goods) as well as porcelain vases (Registrant’s goods), at
www.cb2.com.4
Applicant argues that the goods are “non-competing goods with different uses and
purposes” inasmuch as Applicant’s mark “covers furniture and furniture parts and
fixtures whereas the cited registration covers various types of drinking containers.”
9 TTABVUE 8. However, it is unnecessary for the Examining Attorney to
demonstrate that all of the goods in the application are related to those in the cited
registration; it is sufficient 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).
Moreover, as noted above, the goods at issue need only be related in some manner
and/or the circumstances surrounding their marketing such that they could give rise
to the mistaken belief that they emanate from the same source. Coach Servs., 101
USPQ2d at 1722. Here, the evidence of record shows that Applicant’s goods and the
Registrant’s goods are the types of goods provided by the same entities under the

4 Pages from the POTTERY BARN, MIKASA, and WEST ELM websites were made of record with
the Office Action of September 7, 2018 at TSDR 4-28; pages from the RESTORATION
HARDWARE, WILLIAMS SONOMA, BOCONCEPT and CB2 websites were made of record with the
Office Action of March 29, 2019 at TSDR 3-30.
Serial No. 87708759
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same marks. The respective goods also are sold for similar purposes, to furnish and
decorate one’s home or office or their exterior surroundings.
The second DuPont factor favors a finding of likelihood of confusion.
C. The Similarity or Dissimilarity of Trade Channels and Classes of
Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the goods as they are identified in the application at issue and the cited registration.
Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987); Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1471 (TTAB 2016). Neither Applicant’s application nor the cited
registration contains any limitations as to trade channels or classes of customers, and
we may not read any limitation into them. Squirtco, 216 USPQ at 940, quoted in In
re Mr. Recipe, LLC, 118 USPQ2d 1084, 1091 (TTAB 2016); In re Elbaum, 211 USPQ
639, 640 (TTAB 1981). Therefore, the goods of both Applicant and Registrant must
be assumed to travel in all channels of trade usual for such goods.
The only evidence relating to the trade channels through which the goods at issue
travel is the third-party website evidence submitted by the Examining Attorney. This
evidence shows that the goods identified in Applicant’s application, as well as goods
identified in the cited registration, may be offered via the same virtual marketplace
to all relevant classes of purchasers, i.e., individuals interested in furnishing or
decorating their home or office.
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The third DuPont factor weighs in favor of finding a likelihood of confusion.
D. Applicant’s Prior Registrations
Applicant owns the following registrations:
Reg. No. 4903204 for the standard character mark
NEOLITH for, inter alia, “kitchen furniture; bathroom
furniture; office furniture; and outdoor furniture; mirrors
being looking glasses; furniture frames; picture frames”;5
Reg. No. 5200194 for the standard character mark
NEOLITH LIVIN’TOP for “kitchen furniture; bathroom
furniture; office furniture; and outdoor furniture; mirrors
being looking glasses; furniture frames; picture frames”;6
Reg. No. 5200209 for the standard character mark
NEOLITH DIVERSO for “Kitchen furniture; bathroom
furniture; office furniture; and outdoor furniture; mirrors
being looking glasses; furniture frames; picture frames”;7
and
Reg. No. 5503286 for the mark for, inter
alia, “Kitchen furniture; bathroom furniture; office
furniture; and outdoor furniture; mirrors being looking
glasses; furniture frames; picture frames.”8
Relying on the rationale of the prior registration defense stemming from
Morehouse Mfg. Corp. v. J. Strickland & Co., 407 F.2d 881, 160 USPQ 715, 717 (CCPA

5 Issued February 23, 2016.
6 Issued May 9, 2017.
7 Issued May 9, 2017. The English translation of “DIVERSO” in the mark is “various.”
8 Issued June 26, 2018. The description of the mark reads: “The mark consists of the stylized
grey wording ‘THESIZE NEOTLITH’ with ‘THESIZE’ appearing above the word ‘NEOLITH’.
A green rectangle appears above the letter ‘I’ in ‘THESIZE’ and a grey right triangle appears
above the letter ‘I’ in ‘NEOLITH’. The color white represents transparent background and is
not claimed as a feature of the mark. The colors green and grey are claimed as a feature of
the mark.
Serial No. 87708759
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1969), Applicant asserts that no likelihood of confusion will arise if Applicant, “who
owns four prior NEOLITH registrations,
is issued another NEOLITH registration for the same and
very related goods, regardless that between the four prior
NEOLITH registrations and the fifth one, another entity
registered NEOLITH in connection with drinking glass
and mugs and ceramic sculptures. . . . [B]oth applicant’s
prior NEOLITH marks and the cited registrant’s mark are
already registered in this Office and coexist in commerce
without any conflict or likelihood of confusion ever having
been brought forth by either party.
16 TTABVUE 9-10.
As Applicant acknowledges, however, the Morehouse defense “cannot be invoked
by applicant in the present case.” 16 TTABVUE 9. The Morehouse defense is an
equitable affirmative defense which may be asserted in an inter partes case against
a plaintiff’s claim of damage. Morehouse, 160 USPQ at 717. Where, as here, there is
no claim of damage to avoid, the sole issue is whether there is a likelihood of confusion
between the mark Applicant now seeks to register and the cited registered mark.
Instead, we consider Applicant’s prior registrations under the thirteenth DuPont
factor, which relates to “any other established fact probative of the effect of use.” In
re Strategic Partners, Inc., 102 USPQ2d 1397, 1399 (TTAB 2012) (quoting DuPont,
177 USPQ at 567).
The Examining Attorney, citing Strategic Partners, contends that a prior
registration owned by an applicant may be taken into account under the thirteenth
DuPont factor only when:
 There is no “meaningful difference” between the marks in
applicant’s prior registration and its present application;
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 The goods are at least in-part identical; and
 Both Applicant’s prior registration and the cited registration
are more than five years old and thus immune from attack on
likelihood of confusion grounds.
“The Board acknowledged these facts constituted a ‘unique situation,’ such that an
applicant’s prior registration would generally need to fit within these precise
parameters to overcome a Section 2(d) refusal.” Examining Attorney’s Brief, 11
TTABVUE 9.
The decision in Strategic Partners is illustrative. There, the Board found no
likelihood of confusion between applicant’s applied-for mark for
“footwear” and the cited registration 9 for “jackets, shirts, pants, stretch
T-tops and stoles.” The Board reasoned that because applicant’s prior registration for
the mark ANYWEARS (in standard characters), for, inter alia, “footwear” had
coexisted with the cited registration for over five years, the applicant’s existing
registration “is not subject to attack by the owner of the cited registration on a claim
of priority and likelihood of confusion. [internal citation omitted]. We find that these
facts tip the scale in favor of applicant and a finding of no likelihood of confusion.”
Strategic Partners, 102 USPQ2d at 1400. The Board provided the following
explanation:
[T]he present case involves the unique situation presented
by the coexistence of applicant’s existing registration with
the cited registration for over five years, when applicant’s
applied-for mark is substantially similar to its existing

9 The literal portion of the mark reads: ANYWHERE BY JOSIE NATORI.
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registered mark, both for identical goods. When we
consider these facts under the thirteenth du Pont factor,
we find in this case that this factor outweighs the others
and leads us to conclude that confusion is unlikely.
Id. at 1400.
Applicant’s four prior registrations have not co-existed with Registrant’s cited
mark for at least five years. The oldest registration for the mark NEOLITH registered
in 2016; NEOLITH LIVIN’TOP and NEOLITH DIVERSO registered in 2017; and
THESIZE NEOLITH registered in 2018. The cited registration also registered in 2018
and thus is less than two years old. Cf. Strategic Partners, 102 USPQ2d at 1399 (“At
this stage, applicant’s existing registration is over five years old, and thus is not
subject to attack by the owner of the cited registration on a claim of priority and
likelihood of confusion.”); Inn at St. John’s, 126 USPQ2d 1742, 1748 (TTAB 2018)
(“Where an applicant owns a prior registration that is over five years old and the
mark is substantially the same as in the applied-for application, this can weigh
against finding that there is a likelihood of confusion.”), aff’d mem., 777 Fed. App’x.
516 (Fed. Cir. 2019). Because all of the registrations remain subject to attack on
priority and likelihood of confusion grounds, Applicant’s prior registrations do not
outweigh a finding that there is a likelihood of confusion.
Moreover, although the identification of goods in Applicant’s application and prior
registrations are identical in part, Applicant is now seeking to register its mark for
an expanded list of goods. Applicant argues that the “additional goods clearly fall
within applicant’s natural zone of expansion.” 16 TTABVUE 8. Applicant presents no
supporting evidence for this assertion. Applicant also has not shown that these
Serial No. 87708759
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additional goods “are much more related to the goods in applicant’s prior NEOLITH
registration than to the class 21 goods in the cited NEOLITH registration.” Id.
“The Office should not be barred from examining the registrability of a mark when
an applicant seeks to register it for additional goods as it does here, even when the
additional goods are closely related to those listed in a prior registration.” In re
Sunmarks Inc., 32 USPQ2d 1470, 1472 (TTAB 1994) (finding likelihood of confusion
between ULTRA for “gasoline, motor and gear oil, and greases” and the cited mark
ULTRA LUBE for “lubricating oils and greases” despite applicant’s ownership of prior
registrations for ULTRA for “gasoline” (with significant restrictions) and “motor oil”);
see also In re Country Oven, Inc., 2019 USPQ2d 443903, *18 (TTAB 2019) (finding
issuance of applicant’s prior registrations for COUNTRY OVEN did not weigh against
affirming refusal of its applied-for COUNTRY OVEN mark for differing services).
While we have considered Applicant’s prior registrations and the intervening cited
registration, we must determine the case on the facts presented. The fact that
Applicant owns four, as opposed to just one, prior registrations does not dictate a
different result. As has oft been noted, the Board is not bound by the prior decisions
of examining attorneys in allowing marks for registration. See, e.g., In re Cordua
Rests., Inc., 823 F.3d 594, 600, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“The
[US]PTO is required to examine all trademark applications for compliance with each
and every eligibility requirement . . . even if the PTO earlier mistakenly registered a
similar or identical mark suffering the same defect.”).
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The special circumstances and “unique situation” of Strategic Partners are not
present here. By registering Applicant’s involved mark, we would improperly be
giving preclusive effect to the USPTO decisions granting Applicant’s earlier
registrations.10 The thirteenth DuPont factor is neutral.
II. Conclusion
The marks at issue are legally identical, and the goods are related and would
travel in overlapping trade channels to the same or overlapping classes of purchasers.
Although Applicant owns four prior registrations for marks containing the term
NEOLITH, none is over five years old and none encompasses as wide a variety of
goods as does Applicant’s application. Accordingly, we find that Applicant’s stylized
NEOLITH mark, when used in connection with Applicant’s goods, so closely
resembles the cited mark NEOLITH as to be likely to cause confusion, mistake or
deception of prospective consumers.
Decision:
The refusal to register Applicant’s mark on grounds of likelihood of
confusion under Trademark Act Section 2(d) is affirmed.

10 Applicant is not without a remedy, however. It may seek to cancel the cited intervening
registration, if grounds exist under Section 2(d) or other statutory provision, thus removing
it as a bar to registration for any new application Applicant may elect to file.