88603755 (T.T.A.B. Sep. 8, 2021)

Nikola Corporation

Trademark Trial and Appeal BoardSep 8, 2021

88603755 (T.T.A.B. Sep. 8, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: September 8, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Nikola Corporation Serial No. 88603755 _____ Ryan D. Ricks and Gregory S. Scheiferstein of Snell & Wilmer L.L.P. for Nikola Corporation. Rudy R. Singleton, Trademark Examining Attorney, Law Office 102, Mitchell Front, Managing Attorney. _____ Before Kuhlke, Larkin and English Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: Nikola Corporation (“Applicant”) seeks registration on the Principal Register of the standard character mark NIKOLA for “Clothing, namely, t-shirts, shirts, sweatshirts, hooded sweatshirts, jackets, hats; headgear, namely, sports hats, caps, and sun visors; all of the foregoing excluding footwear, and sold directly to consumers.”1 1 Application Serial No. 88603755; filed September 4, 2019 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intent to use the mark in commerce. Applicant amended its goods to the current identification in its January 15, 2021 Request for Reconsideration. Serial No. 88603755 - 2 - The Examining Attorney has refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the stylized mark for “footwear for women.”2 When the refusal was made final, Applicant requested reconsideration and appealed. The Examining Attorney denied the request for reconsideration, and the appeal proceeded. The appeal is fully briefed. We affirm the refusal to register. I. Analysis Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on likelihood of confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co. Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor for which there is argument and evidence. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). 2 Registration No. 4308853; registered March 26, 2013. Section 8 affidavit accepted and Section 15 affidavit acknowledged. Serial No. 88603755 - 3 - In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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.”); 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)). We discuss these factors and the other relevant DuPont factors below. A. Similarity or Dissimilarity of the Goods Under the second DuPont factor we consider “[t]he similarity or dissimilarity and nature of the goods or services.” DuPont, 177 USPQ at 567; see also In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018). We must base our comparison of the goods on the identifications in Applicant’s application and the cited registration. See Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The goods need not be identical or directly competitive for there to be a likelihood of confusion. The evidence Serial No. 88603755 - 4 - need only establish that the goods are related in some manner, or the conditions surrounding their marketing are such that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the goods come from a common source. Coach Servs. Inc. v. Triumph Learning LLC, 688 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); In re Rexel, Inc., 223 USPQ 830, 831 (TTAB 1984). Accordingly, the fact that Applicant has expressly excluded “footwear” from its identification is not determinative of whether the goods are related. It is sufficient for a finding of likelihood of confusion if relatedness is established for any item encompassed in the identification of goods or services in a particular class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *6 (TTAB 2019); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015). To support that the goods are related, the Examining Attorney submitted webpages showing the cited registrant and two third parties using a single mark on women’s shoes and one or more of the clothing items identified in the involved application:  Registrant’s NICOLA mark, including the stylized version subject to the cited registration, used in connection with women’s shoes, shirts, suits, jackets and blazers sold on third-party website Poshmark.com;  HOPPER ISLAND “Women’s Collection,” consisting of apparel such as shirts and t-shirts and footwear for women sold at hopperisland.com; and Serial No. 88603755 - 5 -  CAMEL branded women’s shoes and sweatshirts sold at camelstore.com.3 Evidence that the involved goods are sold by companies under the same mark is relevant to the relatedness analysis. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (crediting relatedness evidence showing that third parties use the same mark for the goods and services); Wet Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1640 (TTAB 2007) (evidence of companies selling both clothing and fragrances supported a finding that such goods are related); In re C.H. Hanson Co., 116 USPQ2d 1351, 1355-56 (TTAB 2015) (relatedness found where Internet evidence demonstrated goods commonly emanate from the same source under a single mark). The third-party uses are some evidence that consumers are accustomed to seeing women’s shoes and the types of clothing in Applicant’s application emanating from a common source. The Examining Attorney also submitted 12 use-based registrations issued to 11 different entities covering footwear for women and some form of the apparel identified in the involved application:4 Mark/Registration No. Goods ME' JE·SCH (Stylized) Reg. No. 5917790 Women’s clothing, namely, shirts, hats and hoods; coats for men and women; footwear for women DYLAN & DAVIDS Reg. No. 5928359 Hats; shirts; women’s shoes KULA KAI Reg. No. 5905513 Shirts; t-shirts; sweatshirts; jackets; hats; caps with visors; cap visors; sun visors; footwear; footwear for women 3 July 17, 2020 Final Office Action, TSDR 7-34. 4 Id. at TSDR 35-72. Each registration covers additional clothing not listed in the chart. Serial No. 88603755 - 6 - Mark/Registration No. Goods THE EDITORS (Stylized) Reg. No. 5893227 Sweatshirts; hooded sweatshirts for women; jackets; shirts; t-shirts; women’s hats and hoods; leather hats; athletic hats and caps; shoes; shoes for women SOMETHING DIFFERENT Reg. No. 5885099 Headwear, hooded sweatshirts, coats, jackets, shirts, and shoes all for women, men and children; footwear; footwear for women PALM BEACH SANDALS Reg. No. 6093766 Footwear; footwear for women; women’s clothing, namely, shirts S.A.F. Reg. No. 6070966 Sweatshirts; hooded sweatshirts; hoods; hats; cap visors; baseball caps; shirts; t- shirts; denim, sports and wind resistant jackets; shoes; footwear for women Reg. No. 6040869 Footwear; footwear for women; hats; headwear; hooded sweatshirts; jackets; shirts; t-shirts GO FOR MINE Reg. No. 6040870 Footwear; footwear for women; hats; headwear; hooded sweatshirts; jackets; shirts; t-shirts OUTCAST SOCIETY Reg. No. 5967269 Footwear; footwear for women; shirts; t- shirts; hooded sweat shirts; jackets SHOP FOR REAL Reg. No. 6046096 Shirts; tee-shirts; sweatshirts; hooded sweatshirts; hoods; jackets; athletic apparel, namely, footwear, hats and caps; footwear for women; women’s shoes Reg. No. 6046724 Footwear; shoes; footwear for women; hooded sweatshirts; sweatshirts; t-shirts; sweat jackets Although these registrations are not evidence that the marks are in use or that the public is familiar with them, they nevertheless have probative value to the extent that they serve to suggest that the goods listed therein are of a kind which may Serial No. 88603755 - 7 - emanate from a single source. See, e.g., In re Embiid, 2021 USPQ2d 577, at *22-23 (TTAB 2021) (recognizing that evidence of relatedness may include use-based registrations covering the goods of both registrant and applicant); 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, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); Albert Trostel & Sons Co., 29 USPQ2d at 1785-86; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Here, the third-party registrations corroborate the evidence of third-party use. In addition, some types of footwear for women are inherently complementary to certain clothing items in Applicant’s application. For example, winter boots for women and winter hats are complementary items worn together for the same purpose as are rain boots for women and rain hats and jackets. “[C]omplementary use has long been recognized as a relevant consideration in determining a likelihood of confusion.” In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (“In the instant case, we take notice that the products ‘bread’ and ‘cheese’ are often used in combination”); see also Wet Seal Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1640 (TTAB 2007) (finding women’s clothing and fragrances closely related, complementary products). Moreover, “as early as 60 years ago, the Federal Circuit’s predecessor court noted that commercial diversification had led to companies offering footwear and clothing items under the same mark.” Embiid, 2021 USPQ2d 577, at * 29 (citing Gen. Shoe Corp. v. Hollywood-Maxwell Co., 277 F.2d 169, 125 USPQ 443, 444-45 (CCPA 1960) Serial No. 88603755 - 8 - and In re Keller, Heumann & Thompson Co., 81 F.2d 399, 28 USPQ 221, 223 (CCPA 1936)). The record here supports that this is still the case today. Notwithstanding the foregoing, Applicant attempts to distinguish its goods by arguing that it owns a companion application for the standard character mark NIKOLA that has been allowed for motor vehicles, including electric automobiles and related parts (the “Allowed Goods”) and that we must consider the Allowed Goods in our likelihood of confusion analysis:5 [I]n totality, Applicant’s Goods also include the Allowed Goods in international class 12…. Thus, Applicant’s Goods, as perceived by the consumer, include the Allowed Goods, namely, motor vehicles and related components, and promotional clothing and headgear excluding footwear and sold directly to consumers. The consuming public will generally view the applied-for-goods as secondary goods for promotion of Nikola Corporation and the Allowed Goods as Applicant’s primary goods because Nikola Corporation is ‘a designer and manufacturer of zero-emission battery-electric and hydrogen-electric vehicles, electric vehicle drivetrains, vehicle components, energy storage systems, and hydrogen infrastructure’ first and foremost…. [T]here is nothing in the record to suggest that a purchaser of promotional shirts or hats directly from a motor vehicle manufacturer known for a vision of zero-carbon emissions, who also purchases footwear for women from a department store or clothing store, would consider the goods to emanate from the same source. Applicant’s argument is not well-taken. The involved application stands on its own and is not limited in any way by Applicant’s allowed application for different goods.6 Cf. Federated Foods, 192 USPQ at 28 (each class of goods requires a factual 5 Appeal Brief, 6 TTABVUE 12-14; see also January 15, 2021 Request for Reconsideration, TSDR 16, Exhibit A (notice of allowance for application Serial No. 86617100). 6 Even if the Allowed Goods were covered by the involved application, we would not consider them in comparing Applicant’s goods in International Class 25 to registrant’s goods. A multiclass application is the equivalent of separate applications. Federated Foods, 192 USPQ at 28; G&W Labs., Inc. v. G W Pharma Ltd., 89 USPQ2d 1571, 1573-74 (TTAB 2009). Serial No. 88603755 - 9 - determination on likelihood of confusion). As stated, we are bound to compare Applicant’s goods as they are identified in the application before us with the goods specified in the cited registration. See, e,g., Dixie Rests., 41 USPQ2d at 1534 (“Indeed, the second DuPont factor expressly mandates consideration of the similarity or dissimilarity of the [goods or] services ‘as described in an application or registration.’”). Applicant’s application for the Allowed Goods has no bearing on this analysis. Moreover, the involved application is not limited to clothing that promotes or is otherwise associated with Applicant’s vehicles or mission “to become a global leader in zero-emission transportation.”7 Nor can we consider extrinsic evidence regarding Applicant’s goods. Detroit Athletics, 128 USPQ2d at 1052 (“The relevant inquiry in an ex parte proceeding focuses on the goods and services described in the application and registration, and not on real world conditions.”) (citing In re i.am.symbolic, 123 USPQ2d at 1749). Because the nature of Applicant’s goods is unrestricted, we must presume that Applicant offers all types of clothing identified in the application. See, e.g. Embiid, 2021 USPQ2d 577, at *27; Sock It To Me, Inc. v. Fan, 2020 USPQ2d 10611, at *8 (TTAB 2020). We find the record sufficient to support that the clothing in Applicant’s application is related to registrant’s “footwear for women.” Accordingly, the second DuPont factor weighs in favor of finding a likelihood of confusion. 7 Reply Brief, 9 TTABVUE 3. Serial No. 88603755 - 10 - B. Similarity or Dissimilarity of the Trade Channels and Classes of Consumers Turning to the third DuPont factor, “[a]pplicants have the option of tailoring their applications so that the registrations that ultimately issue will more closely reflect market realities: they may identify their goods with greater specificity, indicate a specific use for which the goods are specialized, identify the types of purchasers who use the goods, indicate a price range, specify any trade channels to which their marketing activities may be restricted, and describe any specific circumstances that will necessarily attend the sale of the goods.” In re FCA US LLC, 126 USPQ2d 1214, 1217 (TTAB 2018), aff’d mem., 778 F. App’x 962 (Fed. Cir. 2019). Applicant argues it has done just that by amending its identification of goods to specify that Applicant’s clothing is “sold directly to consumers”:8 Applicant sells only directly to the consumer, as indicated in the applied- for goods, including directly through their own website. Additionally, Applicant’s website prominently markets and promotes their primary goods, the Allowed Goods, on their homepage. Indeed the structure of Applicant’s website guarantees that an unsuspecting consumer would first view images and information related to the Allowed Goods before the consumer is able to access or purchase the applied-for-goods. Applicant, however, overstates the scope of its trade channel limitation. The recited restriction, “sold directly to consumers,” does not limit Applicant to selling or marketing its clothing through a website that promotes Applicant’s Allowed Goods or in any other manner associated with its vehicles. We cannot consider extrinsic 8 Appeal Brief, 6 TTABVUE 14; see also Reply Brief, 9 TTABVUE 3 (asserting that in addition to its website, “Applicant also sells the applied-for goods at a physical location through its headquarters in Phoenix, Arizona, and has future plans to sell the same at its production facilities in Ulm, Germany and Coolidge, Arizona”). Serial No. 88603755 - 11 - evidence of alleged “real world conditions” or read such limitations into the identification. Embiid, 2021 USPQ2d 577, at *28 (“[W]e may not import restrictions into the identification[s] based on alleged ‘real world conditions’ of the sort argued by Applicant, or consider extrinsic evidence regarding Applicant and Registrant themselves.”) (internal citation omitted). “Sold directly to consumers” simply means that Applicant will not use a retailer or other third party to sell its goods to the ultimate consumer. We must presume that Applicant will sell its goods directly to consumers without any association with its vehicle business and through all ordinary outlets for such goods, including online and brick and mortar retail stores and through wholesale outlets. Because registrant’s goods are unrestricted, we also must presume that registrant sells “footwear for women” through all ordinary channels of trade. Selling “directly to consumers” through online and brick and mortar stores and wholesale outlets are ordinary channels of trade for such goods. Accordingly, there is overlap in the respective trade channels such that purchasers could encounter Applicant’s and registrant’s goods under circumstances that could give rise to the mistaken belief that the goods come from a common source. Further, the involved application does not limit Applicant’s consumers to those “likely to be aware and supportive of Applicant’s [zero-emission] mission,”9 nor does it place any other restrictions on the types of consumers for Applicant’s goods. “[W]e must consider [Applicant’s goods] to be offered and sold to all of the usual customers 9 Reply Brief, 9 TTABVUE 3. Serial No. 88603755 - 12 - for such goods,” DeVivo v. Ortiz, 2020 USPQ2d 10153, at *31 (TTAB 2020), namely, the general consuming public, which is the same group of consumers for registrant’s footwear for women. Embiid, 2021 USPQ2d 577, at *31 (“By their nature, shoes, shirts and sweatshirts are ‘general consumer goods’ that are ‘marketed to the general population,’ and that are purchased or used in some form by virtually everyone.”) (internal citation omitted). The facts here are different from those in the non-precedential decision In re Bentley Motors Ltd., Serial No. 85325994 (TTAB Dec. 3, 2013), cited by Applicant. In Bentley Motors, the applicant amended its application for the mark BENTLEY for cosmetic preparations and articles of glass, crystal, earthenware and porcelain to specify “all the foregoing sold exclusively through authorized vehicle dealers and authorized vehicle service outlets.” The Board found this restriction obviated a likelihood of confusion with BENTLEY and BENTLEY-formative marks owned by different entities for personal care preparations and beverage glassware, among other goods, explaining that “[t]here is nothing in the record … to suggest that the ordinary channels of trade for registrants’ goods include ‘authorized’ vehicle dealers and vehicle service outlets…. We find that the trade channels, as now identified in applicant’s application, are distinct and do not overlap with the ordinary channels of trade for the identified goods.” Bentley Motors, p. 8. The trade channel restriction in the application here does not reflect marketing realities in any meaningful way that would preclude a likelihood of confusion. Serial No. 88603755 - 13 - For the foregoing reasons, the third DuPont factor also favors a finding that confusion is likely. C. Similarity or Dissimilarity of the Marks We next consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. Stone Lion, 110 USPQ2d at 1160; 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) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F. Appx. 516 (Fed. Cir. 2019). The issue is not whether the marks can be distinguished when subjected to a side- by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression such that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs. 101 USPQ2d at 1721. The focus is on the recollection of the average purchaser, who normally retains a general rather than specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not predicate our analysis on a dissection of the involved marks; we consider the marks in their entireties. Stone Lion, 110 USPQ2d at 1160; 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 Serial No. 88603755 - 14 - considered as a whole in determining likelihood of confusion.”). But one feature of a mark may be more significant than another, and it is not improper, for rational reasons, to give more weight to a dominant feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at 1161 (finding that the Board did not err in reasoning that the term LION was dominant in both applicant’s mark STONE LION CAPITAL and opposer’s marks LION CAPITAL and LION); In re Chatam Int’l, 71 USPQ2d at 1946. In comparing the marks, Applicant asserts that its mark NIKOLA must be “considered in connection with all the particular goods for which it is used,” including the Allowed Goods;10 and (2) “Applicant’s mark provides a very different connotation to the [cited mark] (i.e. invoking the legacy and pioneering spirit of Nikola Tesla as opposed to invoking a female name), and a very different commercial impression relative to the [cited mark] (e.g. innovative electric/hydrogen based vehicles and components thereof as opposed to feminine footwear).... Applicant’s mark ‘NIKOLA’ implies innovation in electrical engineering and green technology, characteristics associated with the famous inventor Nikola Tesla. In contrast, the [cited mark], which is registered only when written in feminine script, implies something else entirely, namely, femininity, when applied to women’s footwear, thus exhibiting a completely distinct connotation and commercial impression.”11 Applicant’s arguments are unpersuasive. 10 Appeal Brief, 6 TTABVUE 7. 11 Id. at 9-10. Serial No. 88603755 - 15 - As discussed in Section I.A above, Applicant’s allowed application for the mark NIKOLA for motor vehicles and related parts does not serve to limit the scope of the clothing identified in the application involved here or the meaning of Applicant’s mark. There is nothing on the face of Applicant’s mark or Applicant’s identified clothing that ties Applicant’s mark to Nikolas Tesla, innovation in electrical engineering, green technology or electric/hydrogen-based vehicles. Embiid, 2021 USPQ2d 577, at *18. Even if Applicant makes such an association in marketing materials, no such restriction is included in the identification of goods so we cannot consider it. Applicant is free to change its marketing materials at any time. We find that Applicant’s mark connotes a given name as does registrant’s mark. Regardless of whether one mark connotes a male name and the other a female name, the marks overall engender a commercial impression of similar given names.12 The marks also are pronounced the same and their spelling differs only by the letter “k” in the second syllable in Applicant’s mark versus the letter “c” in the second syllable of registrant’s mark. The average purchaser, with a general rather than specific impression of trademarks, may not notice the minor difference in spelling. See, e.g., Mag Instrument, Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1715 (TTAB 2010) (likelihood of confusion between MAG STAR and MAXSTAR); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB 2004) (ONCASE confusingly similar to ONCONASE); Kabushiki Kaisha Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 12 The given name Nikola is not so unique as to call to mind Nikola Tesla to the general consuming public of Applicant’s clothing. Serial No. 88603755 - 16 - 1985) (finding the mark SEYCOS confusingly similar to SEIKO); In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (mark CAYNA (stylized) confusingly similar to CANA). And those consumers who do notice the difference may mistakenly believe that the marks identify companion products or product line extensions. See, e.g., Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks may believe that applicant’s mark is a variation of opposer’s mark that opposer has adopted for use on a different product.”). Finally, we note that Applicant’s mark is not limited to a particular style or font so Applicant is free to display its mark in any manner, including in a font or stylization similar to the cited mark. See, e.g., Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018) (“Since Registrant’s mark is a standard character mark, we must consider that the literal elements of the mark (the words and the letters) may be presented in any font style, size or color, including the same font, size and color as the literal portions of Applicant’s mark. This is because the rights associated with a standard character mark reside in the wording per se and not in any particular font style, size, or color.”) (citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011)); In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008). Accordingly, Applicant’s attempt to distinguish registrant’s mark based on its stylization is without merit. Serial No. 88603755 - 17 - We find that the marks in their entireties are very similar in appearance, sound, connotation and commercial impression. Accordingly, the first DuPont factor supports that confusion is likely. D. Sophistication of Consumers The fourth DuPont factor concerns “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ 567. In addressing this factor, Applicant’s argument again relies on extrinsic evidence: The upscale and premium nature of Nikola’s Allowed Goods and its sophisticated, environmentally conscious customer base, coupled with Nikola’s exclusive, limited channels of trade as recited in the applied-for goods, vitiates any likelihood of confusion. … Applicant caters to a niche, sophisticated, environmentally conscious clientele.13 For the reasons already discussed, this argument is misplaced. Absent any restrictions to the contrary, we presume that Applicant and registrant’s goods include relatively inexpensive clothing and footwear sold to ordinary purchasers with no particular sophistication.14 Embiid, 2021 USPQ2d 577, at *32 (“identifications of ‘shoes,’ ‘shirts,’ and ‘sweatshirts’ encompass … ‘off-the-shelf items purchased by all 13 Reply Brief, 9 TTABVUE 5; see also Appeal Brief, 9 TTABVUE 17. 14 Applicant relies on In re British Bulldog Ltd., 224 USPQ 854 (TTAB 1984) for the proposition that women’s shoes “are often ‘purchased with care, usually with the assistance of a salesman,’” 6 TTABVUE 18, but Applicant has not introduced any evidence to support this position. As we recently explained, “[t]his argument illustrates the danger in relying on past decisions, without supporting evidence, to establish current marketing practices. British Bulldog was decided in 1984, before the commercial Internet existed and long before it became an everyday means to purchase goods without entering a retail store.” Embiid, 2021 USPQ2d 577, at *32, n.47. Because Applicant has not supported its argument with evidence, we give it no further consideration. Serial No. 88603755 - 18 - manner of people … and worn by virtually everyone”) (internal citations and quotation marks omitted); see also Sock It To Me, 2020 USPQ2d 10611, at *8. The fourth DuPont factor is neutral. II. Conclusion The record establishes that Applicant’s clothing is related to registrant’s “footwear for women.” Applicant’s trade channel restriction, “sold directly to consumers,” is not a meaningful limitation because relevant consumers, namely, the general consuming public, may encounter the goods of both Applicant and registrant through the same channels of trade (e.g., retail stores and wholesale outlets). Accordingly, and because the marks are substantially similar in overall appearance, sound, connotation and commercial impression, we find that Applicant’s standard character mark NIKOLA is likely to be confused with the cited mark .15 15 In the closing paragraph of its reply brief, Applicant requests that “if the Board determines that a further narrowing revision to the description of the applied-for goods could place the application in condition for publication, Applicant respectfully requests an opportunity to make such revision.” The Board will not advise Applicant regarding how to identify its goods. Cf. In re Faucher Indus., Inc., 107 USPQ2d 1355, 1357 (TTAB 2013) (“The Board cannot, as applicant suggests, pick and choose among the three sets of identifications that were proposed during the prosecution of the application.”). In any event, it is simply too late to further amend the application. Once an application has been considered and decided on appeal, it will not be reopened except for entry of a disclaimer or upon order of the Director. Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g); see also, e.g. In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *1-2 (TTAB 2020) (explaining in descending order of preference the timing for filing a proposed amendment in an attempt to obviate a refusal: (1) propose an amendment as early as possible during prosecution of the application; (2) make an amendment in a request for reconsideration soon after the issuance of a final Office action and before the deadline to file an appeal; and (3) after filing an appeal “file a separately captioned request for remand and suspension of proceedings with the Board, ideally prior to the deadline for filing an appeal brief, so that the Board can make a prompt ruling on the request and the examining attorney does not have to draft a potentially unnecessary appeal brief”); Faucher Indus., 107 USPQ2d at 1357. Serial No. 88603755 - 19 - Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed.