Tarek Kudsi Alattarv.Charles E. Runels, Jr.

Trademark Trial and Appeal Board

Apr 8, 2021

91242819 (T.T.A.B. Apr. 8, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: April 8, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Tarek Kudsi Alattar
v.
Charles E. Runels, Jr.
_____

Opposition No. 91242819
_____

Heena N. Kampani of Law Office of Heena N. Kampani
for Tarek Kudsi Alattar.

Patrick J. Arnold Jr. and Carey J. Prill of McAndrews, Held & Malloy, Ltd.
for Charles E. Runels, Jr.
_____

Before Kuhlke, Adlin and Pologeorgis,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, Charles E. Runels Jr., seeks registration of the standard character
mark ALTAR for:
Cosmetic skin cream products for anti-aging purposes,
namely, facial cream, body lotion, hand cream, cuticle
cream, lip balm, and after-sun products; Anti-aging body
care products for cosmetic purposes, namely, facial cream,
body lotion, hand cream, cuticle cream, lip balm, and after-
sun products; Aromatic body care products, namely, body
lotion, shower gel, shampoo, hair conditioner, lip balm, and
foot cream; Body and beauty care cosmetics; Body cream
soap; Cleansing creams; Cleansing milk; Cosmetic bath
Opposition No. 91242819

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salts; Cosmetic body scrubs; Cosmetic creams for skin care;
Cosmetic hand creams; Cosmetic masks; Cosmetic
massage creams; Cosmetic milks; Cosmetic nourishing
creams; Cosmetic oils; Cosmetic oils for the face and body;
Cosmetic preparations for body and skin care; Cosmetic
preparations for skin renewal; Cosmetic preparations for
slimming purposes; Cosmetic preparations for the hair and
scalp; Cosmetic preparations, namely, facial creams, facial
cleansers, facial emulsions, facial lotions, facial toners,
firming creams; firming lotions; skin balsams; Cosmetic
products in the form of aerosols for skin care; Cosmetic
products in the form of aerosols for skincare; Cosmetic
rouges; Cosmetic skin fresheners; Cosmetic soaps;
Cosmetic sun milk lotions; Cosmetic sun oils; Cosmetic
sun-protecting preparations; Cosmetic sun-tanning
preparations; Cosmetic sunscreen preparations; Cosmetic
suntan lotions; Cosmetic suntan preparations; Cosmetic
tanning preparations; Cosmetic white face powder;
Cosmetics; Cosmetics and cosmetic preparations;
Cosmetics and make-up; Cosmetics in general, including
perfumes; Cosmetics in the form of milks, lotions and
emulsions; Cosmetics, namely, compacts; Cosmetics,
namely, lip primer; Cosmetics, namely, lip repairers;
Cream soaps; Decorative transfers and skin jewels for
cosmetic purposes; Deodorant soap; Disinfecting perfumed
soaps; Eau de perfume; Eye compresses for cosmetic
purposes; Eye make-up; Eye make-up remover; Eyebrow
cosmetics; Eyes make-up; Face creams and cleansers
containing benzoyl peroxide for cosmetic purposes; Face
creams for cosmetic use; Facial beauty masks; Facial
cleaning preparation, namely, salicylic acne cleanser not
for medical purposes; Facial cleansers; Facial cleansing
grains; Facial cleansing milk; Facial concealer; Facial
cream; Facial creams; Facial emulsions; Facial lotion;
Facial make-up; Facial make-up, namely, powders; Facial
masks; Facial moisturizer with SPF; Facial moisturizers;
Facial oils; Facial scrubs; Facial washes; Flower essences
for cosmetic purposes; Foam cleansers for personal use;
Foams containing cosmetics and sunscreens; Foundation
make-up; Fragranced face care preparations, namely,
facial oils; Fragranced facial moisturizer; Fragranced skin
care preparations, namely, body oils; Gels for cosmetic
purposes; Gift baskets containing non-medicated bath
preparations and cosmetic preparations; Glitter for
Opposition No. 91242819

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cosmetic purposes; Granulated soaps; Greases for cosmetic
purposes; Hand soaps; Handmade soap bars; Lip stains;
Liquid bath soaps; Liquid perfumes; Liquid soap; Liquid
soap used in foot bath; Liquid soaps; Liquid soaps for hands
and face; Liquid soaps for hands, face and body; Loofah
soaps; Lotions for cosmetic purposes; Makeup for the face
and body; Make-up foundations; Make-up kits comprised of
foundation, lip stick, eye shadow; Make-up pencils; Make-
up powder; Make-up preparations; Make-up preparations
for the face and body; Make-up primer; Make-up remover;
Make-up removing lotions; Make-up removing milk, gel,
lotions and creams; Make-up removing milks; Make-up
removing preparations,” in International Class 3.1
Opposer, Tarek Kudsi Alattar, has opposed registration of Applicant’s mark on
the ground that, as used in connection with Applicant’s goods, the mark so resembles
Opposer’s previously used and registered mark , for a variety of goods and
services including cosmetics, hair lotions, and soaps in International Class 3, as to be
likely to cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d). Not. of Opp., 1 TTABVUE. By his answer, Applicant admits, inter alia, that
USPTO records reflect that Opposer is the record owner of the registration for
cosmetics, hair lotions and soaps and that a Section 8 and 15 affidavit was filed. Ans.
¶¶ 4, 40, 4 TTABVUE 2, 6). Applicant denies the remaining salient allegations.2

1 Serial No. 87802753, filed February 19, 2018, based on an allegation of a bona fide intention
to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
2 Applicant’s remaining “affirmative defense” is simply an amplification of his denials.
Opposition No. 91242819

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I. RECORD
The record includes the pleadings and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file of the application subject to the notice of
opposition. In addition the record includes:
 Opposer’s Notice of Reliance Exhs. 1-4 consisting of: 1) copies of Opposer’s
pleaded Registration Nos. 3862764 and 5410459; and 2) Applicant’s Responses
to Opposer’s Interrogatories and Requests for Production of Documents;3 and
 Applicant’s Notice of Reliance Exh. 1 consisting of a copy of Opposer’s pleaded
Registration No. 3862764 and the Trademark Status & Document Retrieval
(TSDR) printout showing the current status and title of the registration.4
II. SECTION 2(d) CLAIM
Section 2(d) of the Trademark Act prohibits the registration of a mark that
“[c]onsists of or comprises a mark which so resembles a mark registered in the Patent
and Trademark Office, or a mark or trade name previously used in the United States
by another and not abandoned, as to be likely, when used on or in connection with

3 14 TTABVUE 27-72. The trial brief attached to the notice of reliance and Exhs. 5-8 were
stricken by Board order on April 2, 2020. 19 TTABVUE. Exh. 4 comprises Applicant’s
Responses to Opposer’s First Request for Production of Documents. The responses do not
include produced documents, merely the response to the request setting out objections and/or
indicating whether or not documents exist or will be produced and, as such, may be
introduced under notice of reliance. Calypso Technology Inc. v. Calypso Capital Management
LP, 100 USPQ2d 1213, 1217 n.8 (TTAB 2011).

4 20 TTABVUE. Pleaded registrations may be made of record by submitting “a current copy
of information from the electronic database records of the Office showing the current status
and title of the registration.” Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). “When evidence
has been made of record by one party in accordance with these rules, it may be referred to by
any party for any purpose permitted by the Federal Rules of Evidence.” Trademark Rule
2.122(a), 37 C.F.R. § 2.122(a).
Opposition No. 91242819

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the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15
U.S.C. § 1052(d). To prevail on his Section 2(d) claim, Opposer must prove, by a
preponderance of the evidence, that it is entitled to a statutory cause of action, has
priority with respect to his registered mark vis-à-vis Applicant’s mark
ALTAR, and that Applicant’s use of his mark in connection with the goods identified
in his application is likely to cause confusion, mistake, or deception as to the source
or sponsorship of those goods. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1848 (Fed. Cir. 2000).
Opposer’s Registrations are summarized below.
 Registration No. 3862764 for the mark
for the following goods:
Bleaching preparations for household use; Cleaning
preparations; Cosmetics; Dentifrices; Essential oils;
Hair lotions; Perfumery; Polishing, scouring and
abrasive preparations; Soaps, in International Class
3;
Dental wax; Dietetic foods adapted for medical use;
Disinfectants for medical instruments; Disinfectants
for sanitary purposes; Food for babies; Fungicides
and herbicides; Material for stopping teeth; Medical
and surgical dressings; Medical and surgical
plasters; Pharmaceutical preparations for the
treatment of infectious diseases; Preparations for
destroying vermin; Sanitary preparations for
medical use; Veterinary preparations for treatment
of intestinal bacteria, in International Class 5;
Compotes; Dried fruit and vegetables; Edible oils
and fats; Eggs; Jellies and jams; Meat extracts;
Meat, fish, poultry and game; Milk; Milk products
excluding ice cream, ice milk and frozen yogurt;
Opposition No. 91242819

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Preserved, dried and cooked fruit and vegetables, in
International Class 29;
Artificial coffee; Baking powder; Bread; Cocoa;
Coffee; Confectionery, namely, pastilles; Flour;
Honey; Ice; Mustard; Pastry; Processed cereals;
Rice; Sago; Salt; Sauces; Spices; Sugar; Tapioca;
Tea; Treacle; Vinegar; Yeast, in International Class
30;
Agricultural grains for planting; Foodstuffs for
animals containing botanical extracts; Fresh fruit
and vegetables; Live animals; Malt for brewing and
distilling; Natural plants and flowers; Seeds and
bulbs, in International Class 31; and
Beer; Fruit drinks and fruit juices; Mineral and
aerated waters; Non-carbonated, non-alcoholic
frozen flavored beverages; Syrups for beverages, in
International Class 32.
The registration contains a disclaimer for the word
ALATTAR and the non-Latin characters that
transliterate to ALATTAR for the goods in Class 3,
a translation of ALATTAR as PERFUMER and the
non-Latin characters transliterate to ALATTAR
which means PERFUMER. The mark is described as
consisting of “a stylized Arabic word, the word
‘ALATTAR’ in stylized lettering, and a circle with a
border within which appears a silhouette of a man
with his arm held up, all upon a rectangle.”
 Registration No. 5410459 for the mark
for the following services:
Business management, business administration
services, Providing office functions, in International
Class 35;
Providing of food and drink, Providing temporary
accommodation, in International Class 43; and
Medical services, veterinary services, Hygienic and
beauty care, Agriculture and horticulture services,
namely, plant selection and propagation of plants,
Opposition No. 91242819

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plant material, and produce in connection with
commercial rooftop soil farms, in International Class
44.
The registration contains a disclaimer for the word
ALATTAR and the non-Latin characters that
transliterate to ALATTAR a translation of
ALATTAR as PERFUMER and the non-Latin
characters transliterate to ALATTAAR which
means PERFUMER. The mark is described as “a
rectangle containing design of a shaded circle
featuring a circular outline along its border. Within
the circle is an illustration of a silhouette of a man
with a raised arm. To the right of the circle but still
within the rectangle is stylized Arabic lettering,
below which is the wording ‘ALATTAR’ written in
stylized text.”
In making our determination, we have not considered Opposer’s arguments based
on and references to evidence that was stricken by prior Board order.5
A. Entitlement to a Statutory Cause of Action and Priority6
Opposer’s entitlement to a statutory cause of action is a requirement that must be
proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies

5 We have not considered the material attached to the brief. Hole In 1 Drinks, Inc. v. Michael
Lajtay, 2020 USPQ2d 10020, at *2 (TTAB 2020) (exhibits attached to brief not considered);
Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1955 (TTAB 2008) (“while exhibits
to briefs are not explicitly prohibited by the Trademark Rules, the Board will usually ignore
them, because they comprise either untimely evidence or unnecessary copies of timely
evidence”); ITC Entertainment Group Ltd. v. Nintendo of America Inc., 45 USPQ2d 2021,
2022-23 (TTAB 1998) (filing duplicative submissions is a waste of time and resources, and is
a burden on the Board).

6 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in
nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13
and 14 remain applicable as the tests “share a similar purpose and application.” Corcamore
LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at *7 (Fed. Cir. 2020), see also
Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB
2020).

Opposition No. 91242819

8

Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, *3 (Fed. Cir. 2020)
(citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 109
USPQ2d 2061, 2067 n.4 (2014)). A party in the position of plaintiff may oppose
registration of a mark where such opposition is within the zone of interests protected
by the statute, 15 U.S.C. § 1063, and the party has a reasonable belief in damage that
is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978
F.3d 1298, 2020 USPQ2d 11277, *6-7 (Fed. Cir. 2020).
As listed above, the record includes copies of Opposer’s pleaded registrations, a
status and title copy of Registration No. 3862764, and Applicant’s admissions that
the USPTO database shows Opposer is the record owner of the pleaded registrations.
In view thereof, Opposer’s entitlement to a statutory cause of action to oppose
registration of Applicant’s mark is established.
In addition, because the pleaded registrations are not the subject of a
counterclaim, priority is not in issue with respect to the marks and goods and services
in the registrations.7 See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d
1270, 111 USPQ2d 1058 (Fed. Cir. 2014); Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982); and King Candy Co., Inc. v. Eunice King’s Kitchen,

7 There is no question as to the proof of Opposer’s pleaded Registration No. 3862764 in view
of the electronic status and title copy submitted by Applicant. To the extent Opposer’s copy
of Registration No. 5410459 and Applicant’s admissions as to that registration are not
sufficient to make it of record, that does not impact the ultimate determination inasmuch as
the analysis focuses on the closer registration for which the record includes a status and title
copy.
Opposition No. 91242819

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Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Applicant does not dispute
Opposer’s entitlement or priority.
B. Likelihood of Confusion
Our likelihood of confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973) (DuPont). See also In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160,
1162-63 (Fed. Cir. 2019) (Board considers each DuPont relevant factor for which there
is evidence and argument). Two key considerations are the similarities between the
marks and the similarities between the goods and services. 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 (CCPA 1976); 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
1340, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). We focus our analysis on Opposer’s
mark and goods in International Class 3 in Registration No. 3862764 because the
identified goods are, in part, identical, legally identical and otherwise closely related.
If we do not find a likelihood of confusion with respect to this registered mark and its
goods, then there would be no likelihood of confusion with the mark and services in
Opposition No. 91242819

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Opposer’s other registration.8 See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245
(TTAB 2010).
1. Relatedness of the Goods, Channels of Trade, Classes of Purchasers, and
Conditions of Sale
We turn first to a consideration of the goods, channels of trade, classes of
purchasers and conditions of sale. We must make our determinations under these
factors based on the goods as they are recited in the registration and application. See
Octocom Sys. Inc. v. Houston 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.”); In re Elbaum, 211 USPQ 639 (TTAB 1981).
The subject application and Opposer’s registration contain identical goods
(Opposer’s “cosmetics” and Applicant’s “cosmetics” and “cosmetics and cosmetic
preparations”) and legally identical goods (Applicant’s “cosmetic preparations for the
hair and scalp” encompasses Opposer’s “hair lotion”) (Opposer’s “soap” encompasses

8 Although the word ALATTAR is disclaimed only for the goods in Class 3 and not for the
goods in the other classes in Registration 3862764, there is no evidence upon which to make
a finding as to the relatedness of the goods in other classes (e.g., dental wax, disinfectants for
medical instruments, compotes, dried fruit and vegetables, artificial coffee, bread,
agricultural grains for planting, foodstuffs for animals containing botanical extracts) to the
goods listed in the subject application. Thus, even though in theory the word ALATTAR may
possess significance sufficiently separate from the other wording and design to alter the
analysis of the marks as to Opposer’s other registered goods, in view of the lack of evidence
as to the relationship for these goods or the commercial strength of the mark, we would not
be able to find likelihood of confusion. As for Opposer’s Registration No. 5410459, the word
ALATTAR is disclaimed for all of the services in each class.
Opposition No. 91242819

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Applicant’s “cosmetic soaps” “Body cream soap” “Deodorant soap” “Granulated soaps”
and “Hand soaps”). We also find Applicant’s various skin care goods in the form of
lotions and creams are closely related to Opposer’s various cosmetic goods and hair
lotions. It is sufficient for a finding of likelihood of confusion if relatedness is
established for any item encompassed by the identification of goods or services within
a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 209 USPQ 986 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1745 (TTAB 2014).
Because the goods are identical and legally identical and there are no limitations
as to channels of trade or classes of purchasers in either the application or Opposer’s
registration, we must presume that Applicant’s and Opposer’s goods will be sold in
the same channels of trade and will be bought by the same classes of purchasers. See
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (TTAB 2012); Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002);
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed.
Cir. 1987).
Although there is some information in the record for Applicant’s actual channels
of trade (Applicant’s website, a booth at the American Academy of Anti-Aging
Medicine) and classes of consumers (adults interested in anti-aging techniques),9 we
may not limit the trade channels by this extrinsic evidence. In re Elbaum, 211 USPQ

9 Opp. Notice of Reliance Exh. 3 Response to Interrogatory Nos. 11, 13-16, 24 TTABVUE 42-
43.
Opposition No. 91242819

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at 640. Opposer’s and Applicant’s arguments pertaining to trade channels based on
extrinsic evidence or unsupported argument are immaterial.
The same is true as to the conditions of sale and whether the goods are subject to
more careful purchasing decisions. As explained above, the nature and scope of a
party’s goods must be determined on the basis of the goods or services recited in the
application or registration. See, e.g., Stone Lion Capital Partners, L.P. v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (Board must “give full
sweep” to an identification of goods regardless of registrant’s actual business). We
must consider various cosmetics, lotions and soaps from all price points, and base our
determination on the least sophisticated consumer of the identified goods. Stone Lion,
110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB
2018) (“Board precedent requires our decision to be based on the least sophisticated
potential purchasers.”)). Thus, although there is information in the record that
Applicant’s cosmetic creams cost $147 per container,10 that is only one of the goods
for which Applicant seeks registration and because the parties’ respective
identifications of goods are unrestricted, we must assume that these goods are sold
to ordinary purchasers who exercise no more than ordinary care in their purchasing
decisions. See In re Fabfitfun, Inc., 127 USPQ2d 1670, 1673 (TTAB 2018) (no
restriction on price in identifications required Board to consider degree of care
exercised by purchasers of low-cost cosmetics).

10 Opp. Notice of Reliance Exh. 3 Response to Interrogatory No. 8, 24 TTABVUE 41.
Opposition No. 91242819

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In view of the above, the similarity of the goods, the channels of trade, classes of
purchasers and conditions of sale favor a finding of likelihood of confusion.
2. Similarity of the Marks
We now consider the similarity or dissimilarity of the parties’ marks and compare
them in their entireties in terms of appearance, sound, connotation and commercial
impression. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed.
Cir. 2018); see also Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” In re
Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citing In re White Swan Ltd., 8 USPQ2d
1534, 1535 (TTAB 1988)). “The proper test is not a side-by-side comparison of the
marks, but instead whether the marks are sufficiently similar in terms of their
commercial impression such that persons who encounter the marks would be likely
to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted).
The marks must be considered in their entireties, but “‘in articulating reasons for
reaching a conclusion on the issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties.”’ Detroit Athletic, 128 USPQ2d at 1051 (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)). Finally, when, as here,
the goods are identical or legally identical in part, the degree of similarity between
the marks necessary to support a determination that confusion is likely declines. See
Opposition No. 91242819

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Bridgestone Americas Tire Operations, LLC v. Fed. Corp., 673 F.3d 1330, 102
USPQ2d 1061, 1064 (Fed. Cir. 2012); In re Viterra Inc., 101 USPQ2d at 1908; In re
Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010).
Much of Opposer’s argument appears to assert a different mark, the word
ALATTAR by itself. Opposer has not established proprietary common law rights in
ALATTAR as a mark by itself and we only address the mark in the pleaded and
proven Registration No. 3862764. Thus, we consider whether the mark ALTAR is
confusingly similar to the mark .
Citing In re Johnson Products Co., Inc., 220 USPQ 539, 540 (TTAB 1983), Opposer
argues that where the marks are used in connection with identical goods the most
important factor is the overall commercial impression of the marks. In that case, the
Board stated more broadly that in comparing marks generally the “most important
of these is the idea that the overall commercial impressions created by the marks are
of primary significance.” Id. While this is a separate factor, over the years, the
element of “overall commercial impression” has also been “used as a proxy for the
ultimate conclusion of similarity or dissimilarity of marks resulting from a
comparison of their appearance, sound, and meaning.” Palm Bay v. Veuve Clicquot,
73 USPQ2d at 1692. The point being that similarity in any one element may lead to
confusing similarity. Opposer argues:
[T]he overall commercial impression is created by the
common features of the letters shared by ALATTAR and
ALTAR, and the same or very similar pronunciation. As
generally known to the Arabic community, the
pronunciation of both the ALATTAR and ALTAR
Opposition No. 91242819

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trademarks is the same in Arabic, which is and
means spice dealer. All of the letters of ALTAR are part
and parcel of ALATTAR. The addition of an extra A and T
does not necessary impact or change the pronunciation of
the marks, nor the appearance of the marks. Thus, the
Applicant’s ALTAR is plainly similar in appearance, sound,
connotation, and overall commercial impression to
Opposer’s mark ALATTAR.
24 TTABVUE 22.11
Further, Opposer argues that his “ALATTAR Registrations on the Principal
Register create a presumption that the ALATTAR mark is valid and distinctive.” 24
TTABVUE 23. While Opposer is correct that the composite mark is presumed valid,
that is not the case for the word ALATTAR by itself, especially where in the case of
the Class 3 goods it is disclaimed. Opposer’s further statements regarding the
meaning of ALATTAR, its use and possible acquisition of secondary meaning are not
supported by evidence and Opposer cannot rely on the incontestability of the
Registration as that registration is for the composite mark rather than ALATTAR
alone.
In comparing the marks, Opposer is correct that because the rights associated
with a standard character mark reside in its wording, and not in any particular
display, we must consider Applicant’s mark “regardless of font style, size, or color,”
including iterations that present Applicant’s mark in a similar stylized form.
Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59
(Fed. Cir. 2011); In re RSI Sys., LLC, 88 USPQ2d 1445 (TTAB 2008); In re Pollio

11 This contradicts the translation statement in the Registration that ALATTAR means
Perfumer not Spice Dealer.

Opposition No. 91242819

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Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988); Trademark Manual of
Examining Procedure (TMEP) § 1207.01(c)(iii) (Oct. 2018). Opposer presents one such
iteration in his reply brief shown below:12

This depiction certainly emphasizes the possible similarity engendered by the
shared letters in one of Opposer’s literal elements in his mark when depicted in an
identical stylization. However, Applicant’s mark is a well-recognized word ALTAR
defined as “a usually raised structure or place on which sacrifices are offered or
incense is burned in worship – often used figuratively to describe a thing given great
or undue precedence or value especially at the cost of something else.”13 By
comparison, Opposer’s ALATTAR would have no meaning to all but Arabic speakers
and for those who speak Arabic it would mean “perfumer” based on the translation
statement in Opposer’s registration, or “spice dealer,” as Opposer now argues, either
way a vastly different connotation. Focusing on a subset of consumers, Opposer
strains the doctrine of foreign equivalents, asserting first, without support, that
ALTAR and ALLATAR are pronounced the same by Arabic speakers and because
they sound the same to this subset of consumers they would also share the same

12 26 TTABVUE 6.
13 Merriam-Webster Dictionary (merriam-webster.com retrieved April 7, 2021). The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format or regular fixed editions. In re Cordua Rest. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re Red Bull GmbH,
78 USPQ2d 1375, 1377 (TTAB 2006).
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connotation. However, faced with a common well-recognized English word it is
unlikely that Arabic speakers would stop and translate it into Arabic because its
pronunciation, in theory, is the same as ALATTAR.
Opposer requests “that the board take judicial notice that Alattar and Altar have
the same pronunciation of in [sic] Arabic (e.g., ).” 24 TTABVUE 10. Applicant
responds to this request by asserting it “is improper, because any request regarding
judicial notice had to be made during Opposer’s testimony period by Notice of
Reliance accompanied by the necessary information, and it was not.” 25 TTABVUE
12. Opposer responds that Applicant only objects that the request was procedurally
improper, but does not dispute the identical pronunciation and given Applicant’s
concession and that it is procedurally improper “it is appropriate to factually conclude
that ALATTAR and ALTAR have the same pronunciation and/or meaning in Arabic.”
26 TTABVUE 9.
Opposer is asking the Board to take Opposer’s word at face value that these words
are pronounced the same in Arabic. Opposer has also argued that the respective
words have the same meaning “spice dealer,” despite the glaring contradiction of that
in the record, i.e., the translation statement in Opposer’s registration that ALATTAR
means “Perfumer” in Arabic. We deny Opposer’s request that the Board take judicial
notice that Alattar and Altar have the same pronunciation and/or mean the same
thing. This is not the type of generally known fact for which we may take judicial
notice, in particular without being accompanied by any information. Trademark Trial
and Appeal Board (TBMP) § 704.12(a) (2020) and cases cited therein. At minimum,
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we would need some type of reference work that specifically stated ALTAR and
ALLATAR have a similar pronunciation in Arabic. Moreover, Opposer is incorrect in
stating that Applicant has conceded and failed to dispute the fact. Applicant clearly
did not concede this fact, Applicant believed correctly this is not appropriate for
judicial notice.
Based on this record although there may be a slight similarity in pronunciation,
for purposes of the §2(d) analysis, there is no “correct” pronunciation of a mark
because it is difficult to predict how the public will pronounce a particular mark. See,
e.g., In re Viterra Inc., 101 USPQ2d at 1912; StonCor Grp., Inc. v. Specialty Coatings,
Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014) (“There is no correct
pronunciation of a trademark that is not a recognized word.”) (citing In re Belgrade
Shoe Co., 411 F.2d 1352, 162 USPQ 227 (CCPA 1969)). This is perhaps especially true
when words are in different languages. We observe in any event that the additional
syllables in Opposer’s mark serve to differentiate it from Applicant’s mark.
On reply, Opposer argues that “Applicant mistakenly believes that a disclaimer
to a portion of the registered mark equates to no protection for the registered mark
in the related class.” 26 TTABVUE 7. Presumably, Applicant was addressing
Opposer’s arguments that appear to assert a word mark ALATTAR by itself.
However, in the context of Opposer’s registered composite mark, the disclaimer of the
word in Opposer’s mark which is the only common element between Opposer’s and
Applicant’s marks does have relevance. Disclaimers do not remove the disclaimed
matter from the mark and the mark must still be regarded as a whole, including the
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disclaimed matter, in evaluating similarity of the marks. However, typically,
disclaimed matter will not be regarded as the dominant feature of a mark. TMEP §
1213.20. Where the matter common to the marks is merely descriptive or diluted
there is a declining possibility of likely confusion Safer, Inc. v. OMS Invs., Inc., 94
USPQ2d 1031, 1044-45 (TTAB 2010) (holding DEER-B-GON for animal repellant
used to repel deer, other ruminant animals, and rabbits, and DEER AWAY and
DEER AWAY PROFESSIONAL for repellant for repelling deer, other big game, and
rabbits, not likely to cause confusion, noting that “DEER” is descriptive as applied to
the relevant goods and thus has no source-indicating significance). Although there is
no mechanical test to select a “dominant” element of a mark, consumers would be
more likely to perceive a fanciful or arbitrary term, rather than a descriptive or
generic term, as the source-indicating feature of the mark. See, e.g., In re Dixie Rests.,
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (affirming TTAB’s
finding that “DELTA,” not the disclaimed generic term “CAFE,” is the dominant
portion of the mark THE DELTA CAFE). If the common element of two marks is
“weak” in that it is generic, descriptive, or highly suggestive of the named goods or
services, it is unlikely that consumers will be confused unless the overall
combinations have other commonality. See, e.g., Juice Generation, Inc. v. GS Enters.
LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015) (remanded for
consideration of whether and to what degree the phrase PEACE & LOVE was
suggestive or descriptive in the food-service industry); In re Bed & Breakfast Registry,
791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986) (reversing TTAB’s holding that
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contemporaneous use of BED & BREAKFAST REGISTRY for making lodging
reservations for others in private homes, and BED & BREAKFAST
INTERNATIONAL for room booking agency services, is likely to cause confusion,
because, inter alia, the descriptive nature of the shared wording weighed against a
finding that the marks are confusingly similar).
While both marks include a word that contains the letters A L T R, begin with AL
have a T in the middle and end with R, the similarity ends there. Applicant’s mark is
the well-recognized word ALTAR and the word ALATTAR in Opposer’s composite
mark would be perceived by non-Arabic speakers as fanciful with no specific meaning.
Although not diminished in conceptual strength in this context, it is starkly different
in connotation. Arabic speaking consumers may understand it to mean “Perfumer,” a
word vastly different in meaning from Altar, and, in this context it would be
conceptually weak as suggestive of the goods.14 In addition, Opposer’s mark includes
script in another language and a design element of a person. The script is above the
word ALATTAR in slightly larger font and for Arabic speakers the design of the
person would underscore the meaning “Perfumer.” These prominent additional
elements serve to present a very different overall commercial impression from
Applicant’s single word mark ALTAR.
We recognize that “when marks would appear on virtually identical goods or
services, the degree of similarity necessary to support a conclusion of likely confusion

14 We acknowledge Opposer’s surname is ALATTAR, however, the parties did not address
this issue, and we do not reach it as it is not relevant when there is no evidence that
consumers are aware of the surname or its connection to Opposer.
Opposition No. 91242819

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declines,” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1701 (Fed. Cir. 1992); but given the dissimilarities in appearance,
sound, connotation and commercial impression, even ignoring the somewhat
conceptually weak nature of the word ALATTAR for Arabic speakers in connection
with the various Class 3 goods, we find the marks are not confusingly similar when
used on the identical cosmetics, lotions and soaps. This factor weighs against finding
likely confusion.
Finally, in his reply brief, Opposer asserts that “Opposer’s registration and the
disclaimer discussed in Applicant’s Main Brief reveal that Applicant similarly cannot
seek registration for ALTAR on Class 3 goods because Applicant’s applied for ALTAR
mark is also descriptive of the goods in Class 3” and posits that under the doctrine of
foreign equivalents:
An American purchaser who is knowledgeable in Arabic
would equate ALTAR and ALATTAR to identical
pronunciations and therefore identical translated meaning
– PERFUMER or The Perfumer. … Thus, an American
purchaser who is knowledgeable in Arabic would find both
ALTAR and ALATTAR to be descriptive of the Applied-for
Class 3 goods. … [and] neither can claim the exclusive right
to use PERFUMER or its foreign equivalent for Class 3
goods including cosmetic and soap products. In summary,
Applicant’s Main Brief shows that Applicant seeks to do
that which Opposer could not, by merely removing the first
2 letters from the mark. Such a minor modification does
not change the pronunciation and the translated meaning.
For at least this reason, the Board should grant Opposer’s
opposition and refuse to register Applicant’s [mark].
26 TTABVUE 11.
Opposer’s offhand reference at the end of his reply brief that alternatively
Applicant’s applied for ALTAR mark is descriptive of the Class 3 goods is an
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unpleaded claim and has not been tried by implied consent. We, therefore, give it no
consideration. We further observe it appears to key off the strained application of the
doctrine of foreign equivalents discussed in the context of the Section 2(d) claim.
3. Balancing of the Factors
We have considered all of the evidence pertaining to the relevant DuPont factors,
as well as the parties’ arguments with respect thereto. In balancing the relevant
factors, we find the differences between the marks sufficient to avoid likely confusion
despite the identical goods and trade channels, in particular given the differences in
connotation and overall commercial impression. “No mechanical rule determines
likelihood of confusion, and each case requires weighing of the facts and
circumstances of the particular mark.” In re Mighty Leaf Tea, 94 USPQ2d at 1259
(citing Century 21 v. Century Life, 23 USPQ2d at 1698)); see also Oakville Hills Cellar,
Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 119 USPQ2d 1286, 1290 (Fed. Cir.
2016) (MAYA not confusingly similar to MAYARI) (quoting Kellogg Co. v. Pack’em
Enters., 951 F.2d 330, 21 USPQ2d 1142, 1144-45 (Fed. Cir. 1991) (“We know of no
reason why, in a particular case, a single duPont factor may not be dispositive”)).
III. Conclusion
Because Opposer has not shown, by a preponderance of the evidence, the existence
of a likelihood of confusion, Opposer has not established his claim under Section 2(d).
Decision: The opposition is dismissed.