Aquatech Seafood LLC

Trademark Trial and Appeal Board

Sep 22, 2021

88524996 (T.T.A.B. Sep. 22, 2021)

This Opinion is not a
Precedent of the TTAB
Mailed: September 22, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Aquatech Seafood LLC
_____

Serial No. 88524996
_____

Aquatech Seafood LLC, pro se.

Angela Duong, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____

Before Cataldo, Heasley and Allard,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Aquatech Seafood LLC, seeks registration on the Principal Register of
the mark HAPPY CLAWS LUCKY PAWS (in standard characters), identifying the
following goods: “edible pet treats,” in International Class 31.1

1 Application Serial No. 88524996 was filed on July 19, 2019, based on Applicant’s assertion
of a bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act;
15 U.S.C. § 1051(b).

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system.

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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark LUCKYPAW (in standard
characters), identifying the following goods: “dog collars; dog collars and leads;
muzzles,” in International Class 18.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
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”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor that is relevant, and have treated other
factors as neutral. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d
1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”)).
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

2 Registration No. 5937898 issued on the Principal Register on December 17, 2019.
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USPQ2d 1253, 1261 (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 or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
I. Evidence
In support of the refusal to register, the Examining Attorney introduced into the
record the results of searches of merriam-webster.com defining HAPPY as “favored
by luck or fortune: fortunate;” CLAW as “a sharp usually slender and curved nail on
the toe of an animal;” LUCKY as “having good luck;” and PAW as “the foot of a
quadruped (such as a lion or dog) that has claws.” (March 11, 2021 Denial of Request
for Reconsideration at 20-34.)
The Examining Attorney further introduced into the record pages downloaded
from the following third-party Internet websites, (February 19, 2020 non-final Office
Action at 5-39; August 19, 2020 final Office Action at 5-37; March 11, 2021 Denial of
Request for Reconsideration at 6-19; 74-110) showing Applicant’s goods and the goods
identified in the cited registration, offered under the same marks:
Up Country (UpCountryInc.com) offers edible pet treats and dog collars;

Wild One (WildOne.com) offers edible pet treats and dog collars;

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Beach Biscuit (BeachBiscuitLove.com) offers edible dog treats, dog collars,
muzzles and leads;

Harry Barker (HarryBarker.com) offers edible dog treats and dog collars;

Two Salty Dogs (TwoSaltyDogs.net) offers edible dog treats and dog collars;

K9 Bytes (K9BytesGifts.com) offers edible dog and cat treats, and dog collars;

Alaska’s Bakery (AlaskasBakery.com) offers edible dog treats, dog collars and
leads;

Menard’s (Menards.com) offers edible dog treats and dog collars;

Gunner Dog Treats (GunnerDogTreats.com) offers wild game bone dog treats
and dog collars;

Good Dog Goods (GoodDogGoods.com) offers edible dog treats and dog collars;

Rocco & Roxie (RoccoandRoxie.com) offers edible dog treats and dog collars;

Paws in the Sand (PawsintheSand.com) offers edible dog and cat treats and
dog and cat collars;

The Barker’s Market (FranklinFarmersMarket.com) offers edible dog and cat
treats, and dog and cat collars;

Petco (Petco.com) offers edible dog treats and dog collars:

PetSmart (PetSmart.com) offers edible dog treats and dog collars;

Pet Valu (PetValu.com) offers edible dog treats and dog collars;

Pet Super Market (PetSuperMarket.com) offers edible dog treats and dog
collars;

Pet Supplies Plus (PetSuppliesPlus.com) offers edible dog treats and dog
collars;

Hund Denmark (HundDenmark.com) offers dog collars and edible dog treats;
and

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K9 Carnivore (K9Carnivore.com) offers edible dog treats and dog collars.3

The Examining Attorney also submitted approximately ten use-based, third-party
registrations for marks identifying goods of the sort identified in the involved
application and the cited registration. (March 11, 2021 Denial of Request for
Reconsideration at 35-73).
The Examining Attorney further introduced into the record all six live trademark
applications and registrations for marks incorporating or consisting of the terms
LUCKY and PAW(S), or their phonetic equivalent. (August 19, 2020 final Office
Action at 39-51). These include, in addition to the involved application and cited
registration, the following four registrations:4
Reg. No. 3372243 for the mark LUCKY PAWZ, identifying “pet boarding services;
pet day care services;”

Reg. No. 4902205 for the mark LUCKY PAWS, identifying “computer game
software for gaming machines, namely, slot machines and video lottery terminals;
computer-gaming software; gaming software that generates or displays wager
outcomes of gaming machines;”
Reg. No. 5632539 for the mark identifying “plastic bags for disposing
of pet waste;” and

Reg. No. 5945596 for the mark LUCKY FAUX PAW, identifying “fake rabbit’s foot
key chain made out of fake fur.”

3 The Examining Attorney’s evidence indicates these companies include the top five pet
product retailers in North America, namely, PetSmart, PetCo, Pet Valu, Pet Supplies Plus
and Pet Supermarket. (March 11, 2021 Denial of Request for Reconsideration at 111-119).
4 All marks are in standard characters unless otherwise noted.
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To support its arguments in favor of registration, Applicant introduced into the
record pages downloaded from the third-party commercial websites of pet treat
contract manufacturers or “copackers” (July 29, 2020 Response to non-final Office
Action at 40-53) explaining that “copackers” manufacture private label pet treats for
resale by their customers. Applicant’s evidence also shows that a listing of the ten
leading pet food companies by revenue in the United States does not indicate that
they produce or sell pet leashes or collars. (February 12, 2021 Request for
Reconsideration at 67).
Applicant further introduced into the record pages downloaded from
informational websites (July 29, 2020 Response to non-final Office Action at 54-79;
February 12, 2021 Request for Reconsideration at 40-46, 54-79) discussing human
and animal illnesses arising from consumption of contaminated foods and pet treats.
Applicant also introduced into the record copies of search summaries and third
party registrations downloaded from the Trademark Office’s Trademark Electronic
Search System (TESS) (July 29, 2020 Response to non-final Office Action at 80-260;
February 12, 2021 Request for Reconsideration at 63-66) listing registrations
identifying pet foods and pet treats, but not pet collars, leads or leashes. None of the
marks in these third-party registrations include the terms HAPPY CLAWS or
LUCKY PAW(S), or otherwise are similar to the marks at issue. Cf. G.B.I. Tile and
Stone Inc., 92 USPQ2d 1366, 1369-70 (TTAB 2009).
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Applicant introduced copies of TESS search summaries (February 12, 2021
Request for Reconsideration at 75-92) for marks including the term PAW(S),
displaying serial number, registration number where applicable, mark and status as
live or dead. The summaries do not include any information regarding the goods or
services identified by the applied-for or registered marks. None of the marks include
the term LUCKY PAW(S).
In addition, Applicant introduced into the record the Google search results for
“hits” responsive to the query “lucky paws,” (February 12, 2021 Request for
Reconsideration at 50-59) showing the term used in some capacity, either as a
trademark or trade name, in connection with the following goods and services:
Pet adoption services – 23;
Pet beds – 2;
Pet resorts – 5;
Pet stores/supplies including food – 2;
Pet grooming – 4;
Pet training, walking and sitting – 3; and
Non-specified goods or goods/services unrelated to pets – 5.
None of the search summaries appear to associate the term “lucky paws” in relation
to pet leashes, leads or collars.
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II. Analysis
A. Similarity or dissimilarity and nature 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….” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
A proper comparison of the goods considers whether “the consuming public may
perceive [the applicant’s and registrant’s respective goods] as related enough to cause
confusion about the source or origin of the goods or services.” Hewlett Packard, 62
USPQ2d at 1004. Therefore, to support a finding of likelihood of confusion, it is not
necessary that the goods be identical or even competitive. It is sufficient that the
goods are related in some manner, or that the circumstances surrounding their
marketing are such that they would be encountered by the same persons in situations
that would give rise, because of the similarity of the marks, to a mistaken belief that
they originate from the same source or that there is an association or connection
between the sources of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB
2009).
The Examining Attorney’s website evidence demonstrates that the above-listed
third parties offer the edible pet treats identified in the application and the dog
leashes, leads, muzzles and collars identified in the cited registration, under the same
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mark. Internet material is competent evidence of trademark registrability in ex parte
appeals. See In re Bayer AG, 488 F.3d 960, 966, 82 USPQ2d 1828, 1833 (Fed. Cir.
2007); In re Reed Elsevier Props., Inc., 482 F.3d 1376, 1380, 82 USPQ2d 1378, 1381
(Fed. Cir. 2007). In this case, the website evidence introduced by the Examining
Attorney shows on its face that third parties offer on their websites Applicant’s
products under the same mark as the goods identified in the cited registration. See,
e.g., Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1427-28
(TTAB 2014). We thus find that consumers would readily expect these goods could
emanate from the same sources.
Although use-based, third-party registrations alone are not evidence that the
marks shown therein are in use or that the public is familiar with them, they
nonetheless may have some probative value to the extent they may serve to suggest
that the goods at issue are of a kind that emanate from a single source. See In re I-
Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018); In re Infinity Broad. Corp.,
60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993). In this case, the Examining Attorney’s registration
evidence serves to buttress the website evidence showing the goods of Applicant and
the owner of the cited registration offered under the same mark by multiple third
parties.
Applicant argues:
The practices of the largest pet food manufacturers represent what is
reflective of the general marketplace, not home-based small businesses,
e-commerce websites and independent pet shops. Contrary to
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Examining Attorney’s position, it is not common for pet food
manufacturers to make dog collars, leads, and muzzles.5

Applicant’s argument, based upon the evidence discussed above, relies upon an
assumption that because the ten largest pet food manufacturers have not been shown
to produce or sell dog collars, leashes, leads and muzzles under the same brand,
consumers will not view these goods as emanating from the same source. However,
the Examining Attorney’s website evidence establishes that twenty third parties,
including the top five pet product retailers, as well as smaller retailers, offer the
products identified in the involved application and cited registration under the same
trademark or house brand. The asserted practices of pet food manufacturers is not
controlling here, particularly in light of the Examining Attorney’s evidence regarding
the practices of pet product retailers of all sizes producing edible pet treats as well as
collars, leashes and muzzles. We are not persuaded by Applicant’s arguments that
certain of the products offered by these retailers are produced by third party
“copackers” for branding and distribution. Regardless of who produces the goods at
issue, the evidence of record indicates that these goods are commonly marketed under
the same marks.
Applicant’s reliance upon In re Coors Brewing Co., 68 USPQ2d 1059 (Fed. Cir.
2003) also is inapposite because we are not comparing restaurant services with house-
branded beers, or more broadly comparing goods with services. The Applicant in
Coors demonstrated that only a very small percentage of restaurants also brewed and

5 12 TTABVUE 18 (Applicant’s brief).
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sold beer under the same mark. In the case before us, Applicant has shown only that
the ten largest pet food manufacturers do not appear to produce pet leashes, collars
and muzzles. However, and as discussed above, the Examining Attorney’s evidence
shows that a significant number of pet product retailers – from the largest North
American chain stores to smaller independent stores and e-commerce retailers –
offer pet treats, collars, muzzles and leashes under the same marks. Comparable
evidence was not present in the Coors appeal.
In further support of its argument that the practices of the largest pet food
retailers are the best gauge of the relatedness of the goods, Applicant argues:
A search conducted using TESS of all the registered trademarks [owned
by the top ten pet food retailers] resulted in over one hundred marks
and not a single registration identified “Dog collars; Dog Collars and
leads; Muzzles” as goods covered by the trademarks.6

The question, however, is not whether some companies engage in the separate
activities. Rather, the question is whether there are companies that engage in both
activities. Evidence that “a single company sells the goods … of both parties, if
presented, is relevant to the relatedness analysis,” Hewlett Packard, 62 USPQ2d at
1004, and the website and registration evidence submitted by the Examining
Attorney is sufficient to show that “the consuming public may perceive them as
related enough to cause confusion about the source or origin of the goods….” Id. As
the Board said in connection with a similar argument based on third-party
registrations, i.e., that there were many third-party registrations for the goods of the

6 12 TTABVUE 19.
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applicant that did not include the goods identified in the cited registration, and vice
versa:
There is no requirement for goods to be found related that all or even a
majority of the sources of one product must also be sources of the other
product. Therefore, evidence showing only that the source of one product
may not be the source of another product does not aid applicant in its
attempt to rebut the evidence of the examining attorney.

In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009).
Similarly, there is no need for the Examining Attorney to establish that the owner
of the cited registration will “expand” into edible pet treats. See, e.g., Hydra Mac, Inc.
v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the confusion
found to be likely is not as to the products but as to their source”); Orange Bang, Inc.
v Ole Mexican Foods, Inc., 116 USPQ2d 1102, 1119 (TTAB 2015) (no need to apply
natural zone of expansion analysis under second DuPont factor). The respective goods
need only be “related in some manner and/or the circumstances surrounding their
marketing [be] such that they could give rise to the mistaken belief that [the goods
and/or services] 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)). See also On-line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984).
Applicant argues that the involved goods are unrelated and, citing In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014), Applicant contends that the
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Examining Attorney is required to show “something more” than the mere fact that
the goods are used together. Applicant’s reliance on In re St. Helena Hosp. is
misplaced. “Something more” is only required in the context of comparing goods
versus services, not goods versus goods, and where the relationship between the goods
and services is obscure or less evident. See id; see also In re Country Oven, Inc., 2019
USPQ2d 443903, *13 (TTAB 2019). As explained in the TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) Section 1207.01(a)(ii) (Jul. 2021)
(“Establishing Relatedness of Goods to Services”):
... when the relatedness of the goods and services is not evident, well
known, or generally recognized, “something more” than the mere fact
that the goods and services are used together must be shown. In re St.
Helena Hosp., 774 F.3d at 754, 113 USPQ2d at 1087 (finding that
substantial evidence did not support relatedness of hospital-based
residential weight and lifestyle program and printed materials dealing
with physical activity and fitness). Therefore, when comparing services
such as “restaurant services” with less apparently related goods such
as “beer,” or “cooking classes” with “kitchen towels,” “something more”
--beyond the fact that the goods are used in the provision of the
services--must be shown to indicate that consumers would understand
such services and goods to emanate from the same source.

Here, it was entirely appropriate for the Examining Attorney to introduce website
evidence and used-based third-party registrations showing that the same entity has
used and registered a single mark identifying the respective goods.
Contrary to Applicant’s arguments, the Examining Attorney’s evidence
establishes that consumers may encounter Applicant’s goods and the goods identified
in the cited registration offered by the same third parties and the subject of
registration by the same third parties. This evidence establishes the relatedness of
the goods. Further, it is not necessary for the Examining Attorney to prove likelihood
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of confusion with respect to each of the goods identified in applicant’s application; if
there is likelihood of confusion with respect to any of Applicant’s identified goods, the
refusal of registration must be affirmed. “[L]ikelihood of confusion must be found as
to the entire class [of goods or services identified] if there is likely to be confusion with
respect to any [good or] service that comes within the recitation of [goods or] services
in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior Living, LLC,
122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
We find that the second DuPont factor weighs in favor of likelihood of confusion.
B. The similarity or dissimilarity of trade channels
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d
at 1161 (quoting DuPont, 177 USPQ at 567).
Because there are no limitations as to channels of trade or classes of purchasers
in the recitation of goods in the involved application or cited registration, we must
presume that the goods move in all channels of trade normal for such goods and are
available to all potential classes of ordinary consumers thereof. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).
As noted above, the Examining Attorney has introduced evidence that the
respective goods are offered for sale on commercial websites of pet supply retailers of
all sizes. Because these websites are accessible to the general public, they must be
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presumed to offer Applicant’s goods and the goods identified in the cited registration
to all ordinary classes of purchasers, in this case, pet owners. This evidence supports
a finding that Applicant’s goods and the goods in the cited registration are offered in
at least one common channel of trade, i.e., third-party websites of pet product
retailers, to overlapping purchasers.
We find that the third DuPont weighs in favor of likelihood of confusion.
C. Strength of the Cited Mark / Number and Nature of Similar Marks
Next, we evaluate the strength of the registered mark and the scope of protection
to which it is entitled. The fifth DuPont factor focuses on the strength of the mark,
and the sixth factor focuses on the number and nature of similar marks in use for
similar goods or services. DuPont, 177 USPQ at 567. In determining strength of a
mark, we consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96
USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its
conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”).
We are not persuaded by Applicant’s argument that:
The elements in common between Applicant’s and Registrant’s mark are
highly suggestive of the named goods and therefore, a weak indicator of
source. Applicant conducted a search of the word “PAWS” using
USPTO’s search engine TESS, which resulted in 4,590 records. After
reviewing the first 500 records. Applicant ascertained that 377 of the
500 records pertained to goods and/or services associated with pets.
Applicant performed a search using Google® - search word “LUCKY
PAWS” - to determine if “LUCKY PAWS” is used in association with pet-
related goods and services in the broader marketplace. This generated
19,800,000 results. The first five pages were overwhelmingly related to
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pets in some manner. Evidence was provided in Applicant’s February
12, 2021 Request for Reconsideration. The results of these searches
demonstrate that, the suggestive wording, “PAWS” and “LUCKY
PAWS,” as related to the goods in question, is commonly used in
association with goods and services related to pets. Thus, it is a weak
indicator or source and confusion is unlikely.7

Turning first to inherent strength, the evidence of record indicates that the mark
LUCKYPAW evokes fortunate four-legged animals. LUCKYPAW thus possesses, at
worst, a slightly suggestive meaning in connection with the dog collars, leads and
muzzles identified thereby.
The Examining Attorney’s evidence outlined above indicates the existence of two
third-party registrations for the marks LUCKY PAWZ identifying pet boarding and
day care services; and identifying pet waste bags. Applicant’s TESS search
summary evidence only demonstrates that a number of PAW(S) formative marks
have been applied for or registered. The evidence does not identify the goods or
services associated with the marks, and none of the marks include a combination of
the terms LUCKY and PAW(S). TESS listings are considered for whatever probative
value they may have. In re Broyhill Furniture Industries Inc., 60 USPQ2d 1511, 1513
n.3 (TTAB 2001) (listing of registration information considered for whatever
probative value it might have, with Board noting that the listing did not indicate
whether registrations issued on the Principal or the Supplemental Register). In this

7 12 TTABVUE 13.
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case, the very limited information supplied by the TESS listings limits the probative
value thereof.
The Google search summary shows over twenty third parties (that appear to be
related regional pet rescue agencies) use some form of the term “lucky paws” in
connection with pet adoption services, while a total of sixteen more use a “lucky paws”
formative in connection with pet beds, resorts, unspecified supplies, grooming and
pet walking or sitting. The record thus indicates approximately forty third-party uses
of “lucky paws” in connection with various products and services directed toward pets.
There are two limitations to Applicant’s Google search summary evidence. First,
the results summaries are truncated to such an extent that they contain insufficient
information upon which we may ascertain the nature of the use, if any, of the term
“lucky paws” therein. Truncated results from search engines frequently are entitled
to little weight. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833
(Fed. Cir. 2007):
Bayer asserts that the list of GOOGLE search result summaries is of
lesser probative value than evidence that provides the context within
which a term is used. We agree. Search engine results—which provide
little context to discern how a term is actually used on the webpage that
can be accessed through the search result link—may be insufficient to
determine the nature of the use of a term or the relevance of the search
results to registration considerations.

See also In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715 (TTAB 2011) (search
engine results submitted by examining attorney not considered because they did not
provide sufficient context to have any probative value). Similarly, in this case the
proffered Google search summaries do not provide sufficient context for us to discern
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the extent to which the use of “lucky paws” is trademark use or otherwise is relevant
to our determination of the strength of the cited LUCKYPAW mark. Second, none of
the search summary results specifically identify the pet leashes, leads, muzzles or
collars identified in the cited registration.
Contrary to Applicant’s contentions, there is scant evidence of third-party
registration of marks similar to the cited LUCKYPAW mark for related products or
services. The number of third-party uses of “lucky paw” formatives for pet products
and services, even overlooking the limitations of the search summary evidence, is
more modest than that found to be determinative in other cases. Cf. Juice Generation,
Inc. v. GS Enters LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015);
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015).
Further, the cited registration issued on the Principal Register without a claim of
acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. §1052(f), and
we must accord the cited registration the presumption of validity provided for under
Section 7(b) of the Trademark Act, 15 U.S.C. §1057(b). We thus presume that the
mark LUCKYPAW is inherently distinctive with no need to acquire secondary
meaning.8

8 There is no evidence regarding the mark’s commercial or marketplace strength. In an ex
parte appeal, the owner of the cited registration is not a party, and the Examining Attorney
is under no obligation to demonstrate exposure to or recognition of the cited mark in the
marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). For that
reason, “in an ex parte analysis of the du Pont factors for determining likelihood of confusion
…, the ‘[commercial strength] of the mark’ … is normally treated as neutral when no evidence
as to [marketplace recognition] … has been provided.” TMEP § 1207.01(d)(ix) (Jun. 2021).
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Viewing the record as a whole, we find that the registered LUCKYPAW mark is
entitled to a slightly narrower than normal scope of protection to which inherently
distinctive marks are entitled, primarily due to the evidence of third-party use of
“lucky paw” formatives for pet related goods and services. See Joseph Phelps
Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734
(Fed. Cir. 2017) (stating that likelihood of confusion fame varies along a spectrum
from very strong to very weak). Based upon the totality of the record evidence, we
find that the registered mark is mildly suggestive, but nonetheless distinctive, as
applied to the identified goods.
The fifth DuPont factor is neutral, and the sixth DuPont factor is neutral or only
slightly favors a finding of no likelihood of confusion.
D. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s HAPPY CLAWS LUCKY PAWS mark and the registered LUCKYPAW
mark in their entireties, taking into account their appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion
Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (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); accord Krim-

Because there is no evidence of record regarding the commercial strength of the cited mark,
this consideration is neutral.

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Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968)
(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”) (citation omitted). In re Inn at St. John’s, LLC, 126 USPQ2d 1742,
1746 (TTAB 2018).
“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, 101 USPQ2d at
1721 (internal quotation marks omitted). See also Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1089 (TTAB 2016). Consumers may not necessarily encounter the marks in close
proximity and must rely upon their recollections thereof over time. In re Mucky Duck
Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988).
Applicant’s HAPPY CLAWS LUCKY PAWS mark subsumes the registered mark
LUCKYPAW in its entirety, adding the preceding wording HAPPY CLAWS. “Marks
have frequently been found to be similar where one mark incorporates the entirety of
another mark, as is the case here.” Coca-Cola Bottling Co. v. Joseph E. Seagram and
Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL is similar to
BENGAL LANCER); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB
1982) (EBONY is similar to EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ
479, 480 (TTAB 1983) (LIL’ LADY BUG is similar to LITTLE LADY).
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The presence or absence of a space between the two words LUCKY PAW(S) is an
inconsequential difference; even if consumers noticed or remembered it, it would not
serve to distinguish these marks. In re Iolo Technologies, LLC, 95 USPQ2d 1498, 1499
(TTAB 2010) (finding ACTIVECARE and ACTIVE CARE are similar); Seaguard
Corp. v. Seaward Int’l, Inc., 223 USPQ2d 48, 51 (TTAB 1984) (SEA GUARD and
SEAGUARD are “essentially identical”); Stock Pot, Inc. v. Stockpot Rest., Inc., 220
USPQ 52, 54 (TTAB 1983), aff'd 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984)
(“There is no question that the marks of the parties [STOCKPOT AND STOCK POT]
are confusingly similar. The word marks are phonetically identical and visually
almost identical.”). Similarly, the difference between plural and singular word forms
LUCKY PAWS and LUCKYPAW is of little consequence in comparing marks under
Trademark Act § 2(d). See. e.g., Wilson v. Delauney, 245 F.2d 877, 114 USPQ 339, 341
(CCPA 1957); Chicago Bears Football Club v. 12th Man/Tenn. LLC, 83 USPQ2d
1073, 1077 (TTAB 2007).
Applicant’s mark also includes the leading term HAPPY CLAWS, suggesting a
fortunate animal with curved nails, or claws, on its toes. The term HAPPY CLAWS
is also prominently placed at the beginning of the mark. We accordingly find this term
to be equally distinctive of the goods as LUCKY PAWS. However, we find that both
Applicant’s HAPPY CLAWS LUCKY PAWS mark and the registered LUCKYPAW
mark connote fortunate pets with paws or claws.
We acknowledge that the presence of HAPPY CLAWS as the leading term in
Applicant’s mark differentiates it visually and aurally from the registered mark. This
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point of distinction, however, does not significantly diminish the strong similarities
in connotation and overall commercial impression engendered by these two marks.
Based upon the above analysis, we find that HAPPY CLAWS LUCKY PAWS is more
similar to the mark LUCKYPAW than dissimilar in terms of appearance, sound,
connotation, and commercial impression. As a result, consumers encountering
HAPPY CLAWS LUCKY PAWS and LUCKYPAW could mistakenly believe the
former is a variation on the registered mark used to identify a line of edible pet treats
emanating from the same source as registrant’s dog collars, leads, leashes and
muzzles. Double Coin Holdings Ltd. v. Tru Development, 2019 USPQ2d 377409, * 7
(TTAB 2019) (“Here, ROAD WARRIOR looks, sounds, and conveys the impression of
being a line extension of WARRIOR.”). “Even those purchasers who are fully aware
of the specific differences between the marks may well believe, because of the
similarities between them, that the two marks are simply variants of one another,
used by a single producer to identify and distinguish companion lines of products.” In
re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985).
For these reasons, we find that the marks are more similar than dissimilar. The
first DuPont factor thus also weighs in favor of finding a likelihood of confusion.
E. Conditions of Sale
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues:
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potential customers are likely to be the consumer that is seeking a
single-ingredient, preservative-free, not made in China, treat for their
cat or dog. This type of customer will be well-informed, concerned about
what they feed their pet, and willing to spend more for a high quality,
higher-end pet treat. All of these factors describe a more sophisticated
buyer, which ultimately lessens the likelihood of confusion with other
marks. As pets are increasingly considered part of the family, a death or
injury of a pet due to recalled pet products is a compelling reason to be
well informed and to exercise care in purchasing decisions.9

However, the goods identified in the involved application and cited registration
are not restricted by trade channel or price point, and will be available to all
interested purchasers. While some purchasers of pet products may be discriminating
in their selection, others may not exercise as great a degree of care. The goods at issue
include pet products offered to all types of consumers, including ordinary consumers
exercising an ordinary degree of care. Nothing about the identified goods suggests
that the consumers are necessarily sophisticated or that the conditions of sale would
mitigate any confusion that would otherwise be likely. The standard of care is that of
the least sophisticated potential purchaser. Stone Lion Capital v. Lion Capital, 110
USPQ2d at 1163 cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018)
aff’d 778 Fed. Appx. 962 (Fed. Cir. 2019) (“Board precedent requires our decision to be
based on the least sophisticated potential purchasers.”).
In the absence of stronger evidence relating to the degree of care ordinary
purchasers exercise with regard to pet treats, leashes, leads, muzzles or collars, the
similarity of the marks and goods outweigh Applicant’s assertion that purchasers are
sophisticated or careful in their purchases. See HRL Assocs., Inc. v. Weiss Assocs., Inc.,

9 12 TTABVUE 16-17.
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12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir.
1990) (similarities of goods and marks outweigh sophisticated purchasers, careful
purchasing decisions, and expensive goods).
Moreover, were we to accord a level of sophistication to the purchasers of the goods
at issue, even sophisticated purchasers are not immune from source confusion. See In
re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110,
112 (CCPA 1970) (“Human memories even of discriminating purchasers...are not
infallible.”)).
Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that despite evidence of slight weakness of
the registered mark, ordinary consumers familiar with dog leashes, leads, muzzles and
collars offered under the registered mark LUCKYPAW would be likely to believe,
upon encountering Applicant’s HAPPY CLAWS LUCKY PAWS mark, that its edible
pet treats originated with or are associated with or sponsored by the same entity.
Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d)
of the Trademark Act.