Barnaby Ltd dba Good Vibrationsv.Be Goods LLC

Trademark Trial and Appeal Board

Jun 3, 2020

92068505 (T.T.A.B. Jun. 3, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 3, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Barnaby Ltd.
v.
Be Goods LLC
_____

Opposition No. 91241053
Cancellation No. 92068505
(Consolidated)
_____

Sheila Fox Morrison and Steven E. Klein of Davis Wright Tremaine LLP,
for Barnaby Ltd.
Christopher J. Day and Janna B. Day of Day Law Firm,
for Be Goods LLC.
_____

Before Taylor, Lykos, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Be Goods LLC (“Applicant”)1 owns a Supplemental Register registration of the
standard character mark SWEET VIBRATIONS (VIBRATIONS disclaimed) for “Sex

1 Although these consolidated proceedings involve both an opposition and a cancellation, we
will refer to Be Goods LLC as “Applicant” and Barnaby Ltd. as “Opposer” in this opinion
because that is the nomenclature used by the parties in their briefs.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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toys; Adult sexual stimulation aids, namely, vibrators,” in International Class 10,2
and seeks registration on the Principal Register of the standard character mark
SWEET VIBRATIONS (VIBRATIONS disclaimed) for “Adult marital and sexual
aids, namely, massagers, vibrators and stimulators,” in International Class 10.3
Barnaby Ltd. (“Opposer”) petitions to cancel Applicant’s registration and opposes
Applicant’s application under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
on the ground that Applicant’s SWEET VIBRATIONS mark so resembles Opposer’s
registered standard character mark GOOD VIBRATIONS for “adult sexual aids,
namely, artificial phalli,” in International Class 10,4 and “retail and mail order
services, featuring, sexually oriented products such as marital aids, electronic devices
media and books,” in International Class 42,5 as to be likely, when used on or in
connection with the goods identified in Applicant’s registration and application, to
cause confusion, to cause mistake, or to deceive.
The Board consolidated the cancellation and opposition proceedings, designating
Opposition No. 91241053 as the “parent” case. 7 TTABVUE 2 (Opposition No.
91241053 and Cancellation No. 92068505).6 The case is fully briefed. We dismiss the
opposition and deny the petition for cancellation.

2 Registration No. 5319043 issued on October 24, 2017.
3 Application Serial No. 87664722 was filed on October 30, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on claimed first use of the mark and first use of
the mark in commerce at least as early as May 20, 2017.
4 Registration No. 3631427 issued on June 2, 2009 and has been renewed. The renewed
registration covers other goods that are not at issue in these proceedings.
5 Registration No. 2040239 issued on February 25, 1997 and has been renewed.
6 Citations in this opinion to the briefs, record, and other materials in these consolidated
proceedings refer to TTABVUE, the Board’s online docketing system. Turdin v. Tribolite,
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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I. Record
The record includes the pleadings,7 the file histories of Applicant’s registration
and application, by virtue of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1),8
Opposer’s pleaded Registration No. 2040239 for the standard character mark GOOD
VIBRATIONS for “retail and mail order services, featuring, sexually oriented
products such as marital aids, electronic devices media and books,” and Registration
No. 3631427 for the standard character mark GOOD VIBRATIONS for, inter alia,
“adult sexual aids, namely, artificial phalli,” by virtue of Trademark Rule 2.122(d)(1),
37 C.F.R. § 2.122(d)(1), and the following materials submitted by the parties during
trial:
Opposer:
• The testimony declaration of Clint Dennis, Opposer’s Senior Director of
Marketing (“Dennis Decl.”), and Exhibits 1-7 thereto, 13-14 TTABVUE;9

Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding
TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE
refer to the page number(s) of the docket entry where the cited materials appear. Unless
otherwise indicated, citations are to the TTABVUE docket in the parent case.
7 Applicant denied the material allegations in Opposer’s Notice of Opposition and Petition for
Cancellation, and did not assert any affirmative defenses.
8 Citations in this opinion to the file histories of the registration and application are to pages
in the Trademark Status & Document Retrieval (“TSDR”) database of the United States
Patent and Trademark Office (“USPTO”).
9 Mr. Dennis’s declaration was submitted in redacted and unredacted versions because
Opposer designated certain information in the declaration as “Confidential Attorneys’ Eyes
Only” under the Board’s Standard Protective Order. The unredacted version appears at 12
TTABVUE, while the redacted (public) version appears at 13 TTABVUE. We will cite Mr.
Dennis’s declaration by paragraph and exhibit number (i.e., “Dennis Decl. ¶ 8; Ex. 1”).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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• Opposer’s First Notice of Reliance and Exhibits 8-57 thereto, consisting of
dictionary definitions, thesaurus and Wikipedia entries, and third-party
registrations, 14 TTABVUE;
• Opposer’s Second Notice of Reliance and Exhibits 58-63 thereto, consisting
of pages from Applicant’s website and Applicant’s responses to certain of
Opposer’s discovery requests, 15-16 TTABVUE;10
• Opposer’s Third Notice of Reliance and Exhibits 64-117 thereto, consisting
of media articles, book excerpts, and a Wikipedia entry about Opposer and
its products and services, and the involved goods and services, 17
TTABVUE; and
• Opposer’s Fourth Notice of Reliance and Exhibit 118 thereto, consisting of
documents regarding the renewal of Opposer’s pleaded Registration No.
3631427, 19 TTABVUE.
Applicant:
• Applicant’s Notice of Reliance and Exhibits 1-9 thereto, consisting of
dictionary definitions, and pages from reference works regarding The Beach
Boys’ song Good Vibrations, 18 TTABVUE.
II. Evidentiary Issues
Applicant asserts two evidentiary objections. First, Applicant argues that

10 Opposer’s Second Notice of Reliance was submitted in redacted and unredacted versions
because Applicant designated certain discovery responses as “Confidential Attorneys’ Eyes
Only” under the Board’s Standard Protective Order. The unredacted version appears at 15
TTABVUE, while the redacted (public) version appears at 16 TTABVUE.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Opposer’s evidence includes a number of unauthenticated
internet publications and similar articles which Opposer
cites in an effort to establish the fame of Opposer’s mark.
To the extent Opposer has offered internet materials and
other exhibits for the purpose of proving the truth of any
matter stated therein, Applicant objects to these materials
as inadmissible hearsay.
22 TTABVUE 6.
Second, Applicant objects to Mr. Dennis’s testimony on the ground that he “states
that he has been employed by Opposer only since April, 2018” and that “[w]ith respect
to any facts or events relating to the time period before his hire date, Mr. Dennis
could not have ‘first-hand knowledge.’” Id. Applicant further objects that the
statements in his declaration that he either has “first-hand knowledge of the facts set
forth in this declaration, or I have derived the information from records maintained
by Good Vibrations in the ordinary course of business,” Dennis Decl. ¶ 1, “constitute
inadmissible hearsay.” Id. Applicant argues that “[s]pecifically, with respect to
Opposer’s sales and advertising figures, Mr. Dennis does not provide any foundation
to suggest this information is derived from records maintained by Opposer in the
ordinary course of business.” Id. Applicant “objects to consideration of Opposer’s sales
and advertising figures on the grounds of hearsay and lack of proper foundation.” Id.
at 6-7 (citing Fed. R. Evid. 401, 803(6)).
Opposer responds to Applicant’s objections in Opposer’s reply brief. Opposer
argues that its Internet materials and articles are self-authenticating and were
properly made of record under notice of reliance, 23 TTABVUE 17, and that
Applicant’s hearsay objection is not well taken because the materials “are not
introduced to prove the ‘truth of the statements contained therein,’ but to show . . .
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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public exposure and recognition” of Opposer’s mark, and are not hearsay when used
for that purpose. Id.
With respect to Applicant’s objections to the Dennis declaration, Opposer argues
that “Applicant’s objection is without basis [because] Mr. Dennis is Opposer’s Senior
Director of Marketing” and his declaration states that “I either have first-hand
knowledge of the facts set forth in this declaration, or I have derived the information
from records maintained by Good Vibrations in the ordinary course of business.” Id.
Opposer contends that Mr. Dennis’s testimony established that he has personal
knowledge of the matters to which he testified on the basis of his broad job
responsibilities as Senior Director of Marketing, and the need to be thoroughly
familiar with this history of Opposer and its GOOD VIBRATIONS mark. Id. at 17-
18.
Opposer also argues that “Applicant has waived its objection by failing to raise it
earlier because it ‘might have been obviated or removed if presented at that time.’”
Id. at 18 (quoting TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) Section 707.03(c) (June 2019)). Opposer argues that “had Applicant timely
raised its objection at the time Mr. Dennis’s declaration was filed, Opposer could have
sought to further supplement Mr. Dennis testimony with additional foundational
facts to the extent they were necessary.” Id.
We overrule Applicant’s objections to Opposer’s Internet and article evidence.
Although Applicant claims that “Opposer’s evidence includes a number of
unauthenticated internet publications,” 22 TTABVUE 6, Applicant does not identify
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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any Internet evidence that does not meet the requirements for self-authentication set
forth in Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031 (TTAB 2010). Applicant’s
purported hearsay objection is superfluous because the Board has long held that
Internet materials and articles “are admissible only to show what has been printed,
not the truth of what has been printed.” Id. at 1040.
We also overrule Applicant’s objections to Mr. Dennis’s declaration. The Board
recently addressed objections similar to those asserted by Applicant here in Moke Am.
LLC v. Moke USA, LLC, 2020 USPQ2d 10400 (TTAB 2020).11 In Moke, the applicant
objected in its brief to a testimony declaration filed by the opposer on two grounds:
(1) the declarant failed to lay a proper foundation for the admission of sales records
attached to his declaration under the business records exception to the rule against
hearsay, and (2) the declarant’s testimony about the history of the prior use of
Opposer’s mark by its predecessor-in-interest was hearsay. The applicant had
exercised its right under Trademark Rule 2.123(c), 37 C.F.R. § 2.123(c), to cross-
examine the declarant, but had not raised the objections during the declarant’s
examination. Id. at *6.
In ruling on the objections, the Board held that “[a]s a general rule, [procedural]
objections that are curable must be seasonably raised, or they will be deemed waived,”
id. at *4 (quoting Nahshin v. Prod. Source Int’l, LLC, 107 USPQ2d 1257, 1259 (TTAB
2013)), while “[o]bjections to . . . testimony, on substantive grounds, such as that the

11 The Moke decision issued after briefing in this case was complete, but we must apply the
law in effect at the time of our decision. We find the Moke panel’s analysis to be instructive
in our disposition of Applicant’s objections here.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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proffered evidence constitutes hearsay or improper rebuttal, or is incompetent,
irrelevant, or immaterial, generally are not waived for failure to raise them promptly,
unless the ground for objection is one which could have been cured if raised promptly.”
Id. (quoting TBMP Section 707.04). The Board found that the applicant had waived
its objection that the declarant had failed to lay a foundation for the admission of the
business records attached to his declarant by “fail[ing] to assert its objection promptly
after Opposer introduced the . . . declaration into evidence.” Id. at 6. The Board
overruled the applicant’s objection to the declarant’s “generalized testimony that he
had been aware of Mini Mania’s MOKE branded products for years before asking to
purchase a ‘moke-style’ vehicle in 2016” because it was “not hearsay because he is
testifying about his personal knowledge,” but sustained the applicant’s hearsay
objection to the portion of the declarant’s testimony “based . . . on what his lawyers
told him.” Id.
Applicant’s objection here that “with respect to Opposer’s sales and advertising
figures, Mr. Dennis does not provide any foundation to suggest this information is
derived from records maintained by Opposer in the ordinary course of business,” 22
TTABVUE 6, is similar in nature to the objection to the introduction of such records
via declaration in Moke. As in Moke, we find that Applicant’s objection here is
procedural and has been waived because Applicant did not promptly object to the lack
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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of foundation following receipt of Mr. Dennis’s declaration.12 See Moke, 2020 USPQ2d
10400, at *4-7.
The Board’s decision on the merits of the objections to the declarant’s testimony
regarding prior use in Moke suggests that hearsay objections to testimony generally
are substantive, not procedural, and are thus not waived if asserted for the first time
in a party’s brief rather than during any remaining time in the applicable trial period
or within the time to request cross-examination of a declarant. But see City Nat’l Bank
v. OPGI Mgmt. GP Inc., 106 USPQ2d 1668, 1672-73 (TTAB 2013) (with respect to
petitioner’s objections to respondent’s witness’s testimony regarding any events
occurring prior to his employment with respondent beginning in May 2008, petitioner
“timely raised objections as to ‘lack of foundation’ when [the witness] testified to
matters involving respondent prior to May 2008” by objecting throughout the
witness’s trial deposition). We need not decide that issue, however, because we find
that Mr. Dennis sufficiently established his competence to testify to pre-employment
matters based on his acquired personal knowledge of those matters.
As noted above, Applicant argues that Mr. Dennis could not have “first-hand
knowledge” “[w]ith respect to any facts or events relating to the time period before
his hire date,” 22 TTABVUE 6, but “first-hand knowledge,” by which Applicant seems
to mean knowledge derived from direct personal observation of “facts or events
relating to the time period before his hire date,” is not required under the Federal

12 Mr. Dennis was the only witness that Opposer offered at trial, but we need not address
whether Opposer could have cured the alleged deficiencies in his testimony “because
Applicant failed to raise its procedural defect promptly.” Moke, 2020 USPQ2d 10400, at *7.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Rules of Evidence. If it were, it would be increasingly difficult to establish facts
regarding the historical use of a mark the longer the period of use, because it would
be increasingly unlikely that there would be a witness who personally observed the
use of the mark decades ago. Personal knowledge is what Rule 602 of the Federal
Rules of Evidence requires, and it is clear that personal knowledge can be acquired
by a review of files and record in the course of a witness’s employment and the
discharge of his or her job duties.
As the Board observed in City Nat’l Bank,
there may be some difficulty for a company involved in a
trademark dispute to produce witnesses with personal
knowledge of the company’s use of its trademarks,
especially if such use dates back many years. In certain
cases, testimony by a person that his job responsibilities
require him to be familiar with the activities of the
company that occurred prior to his employment may be
sufficient to lay a foundation for his subsequent testimony.
City Nat’l Bank, 106 USPQ2d at 1673. We find that this is such a case.
Rule 602 of the Federal Rules of Evidence provides that “[e]vidence to prove
personal knowledge may consists of the witness’s own testimony.” Fed. R. Evid. 602.
Mr. Dennis testified without contradiction that he either has “first-hand knowledge
of the facts set forth in this declaration,” or has “derived the information from records
maintained by [Opposer] in the ordinary course of business,” Dennis Decl. ¶ 1; that
as Senior Director of Marketing, he is “responsible for all aspects of [Opposer’s]
marketing and branding, including but not limited to sales, marketing, and
distribution of the products to be sold by [Opposer] under its GOOD VIBRATIONS
mark;” and that as part of his responsibilities as Senior Director of Marketing, he is
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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“required to be thoroughly familiar with and [has] developed extensive knowledge
about, the history of [Opposer] and its GOOD VIBRATIONS mark.” Dennis Decl. ¶ 2.
We find that Mr. Dennis’s testimony regarding his job duties and responsibilities is
sufficient to establish his personal knowledge regarding events prior to his
employment with Opposer. Cf. City Nat’l Bank, 106 USPQ2d at 1673 (finding that
respondent had not shown that its witness’s position as in-house counsel “required
him to have knowledge, let alone knowledge of the particular details, of the matters
for which he was testifying and which predated his employment,” and that
respondent did not show how certain of his testimony “regarding the content and
appearance of respondent’s intranet site for the years preceding 2008” was the “type
of information [that] would necessarily be obtained through the normal course of his
employment as in-house counsel.”). We will consider Mr. Dennis’s declaration for
whatever probative value it may have on the issue of likelihood of confusion.
III. The Parties
Opposer and Applicant are competitors in what Opposer calls the “sexually
oriented products” business, which involves the sale of adult toys and sexual aids
such as vibrators, pulsators, dildos, and similar products. Dennis Decl. ¶¶ 3, 5; 16
TTABVUE 4-8 (Applicant’s website), 18-19 (Applicant’s Responses to Opposer’s
Requests to Admit Nos. 20-22, 24-27), 33-36 (Applicant’s Responses to Opposer’s
Interrogatory Nos. 1, 3, 9-10, 15). Opposer has been in that business under the GOOD
VIBRATIONS mark since 1977. Dennis Decl. ¶¶ 6-7. Applicant appears to have been
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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in the same business under the SWEET VIBRATIONS mark since 2017. 16
TTABVUE 34 (Applicant’s Response to Opposer’s Interrogatory No. 9).
IV. Standing
A threshold issue in every inter partes case is the plaintiff’s standing to challenge
registration. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.2d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014). “To have standing, a plaintiff must have a real
interest, i.e., a personal stake in the outcome of the proceeding and a reasonable basis
for its belief that it will be damaged” by registration or continued registration of the
involved mark. TiVo Brands, LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1102-03 (TTAB
2018) (citing Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d
1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir. 1999)).
Opposer asserts its standing to oppose Applicant’s application and to seek
cancellation of Applicant’s registration based on Opposer’s prior use and registration
of the GOOD VIBRATIONS mark. 21 TTABVUE 27.13 Opposer properly made of
record its registrations of its GOOD VIBRATIONS mark pursuant to Trademark Rule
2.122(d)(1), 37 C.F.R. § 2.122(d)(1), by attaching to its Notice of Opposition and
Petition for Cancellation copies of information regarding the registrations from the
USPTO’s electronic databases showing the current status and Opposer’s ownership
of the registrations. 1 TTABVUE 7-12 (Opposition No. 91241053); 1 TTABVUE 9-14
(Cancellation No. 92068505). The registrations give Opposer a real interest in both
proceedings and a reasonable belief that it will be damaged by registration or

13 Applicant does not dispute Opposer’s standing.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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continued registration of Applicant’s mark. Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). We find that Opposer has standing
in both proceedings.
V. Analysis of Likelihood of Confusion 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
the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15
U.S.C. § 1052(d). To prevail on its § 2(d) claim, Opposer must prove, by a
preponderance of the evidence, that it has priority in the use of its mark and that
Applicant’s use of its mark is likely to cause confusion, mistake, or deception as to the
source or sponsorship of the goods identified in its registration and application.
Cunningham, 55 USPQ2d at 1848.
A. Priority
In the opposition proceeding, because Opposer’s pleaded registrations are of
record, and Applicant did not counterclaim to cancel them, priority is not in issue
with respect to the goods and services identified in the registrations. Mini Melts, Inc.
v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974)).
In the cancellation proceeding, however, “where both parties own registrations,
priority is in issue.” Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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*4 (TTAB 2019) (quoting Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110
USPQ2d 1458, 1474 (TTAB 2014)). To prove priority, Opposer cannot rely solely on
the fact that its registrations are of record, but it must prove proprietary rights in its
GOOD VIBRATIONS mark prior to Applicant’s proven date of first use.
Although Opposer may rely on the filing dates of the applications that matured
into its registrations as its dates of constructive use of the mark, see, e.g., Central
Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1141 (TTAB 2013), because
Applicant’s registration is on the Supplemental Register, Applicant cannot rely on
the filing date of the application that matured into its registration to establish a
constructive use priority date. Section 26 of the Trademark Act, 15 U.S.C. § 1094,
provides that “registrations on the supplemental register shall not be subject to or
receive the advantages of section[ ] . . . 1057(c),” which provides that
[c]ontingent on the registration of a mark on the principal
register . . . the filing of an application to register such
mark shall constitute constructive use of the mark,
conferring a right of priority, nationwide in effect . . .
against any other person except for a person whose mark
has not been abandoned and who, prior to such filing—(1)
has used the mark; (2) has filed an application to register
the mark which is pending or has resulted in registration
of the mark; or (3) has filed a foreign application to register
the mark on the basis of which he or she has acquired a
right of priority, and timely files an application under
section 1126(d) of this title to register the mark which is
pending or has resulted in registration of the mark.
15 U.S.C. § 1057(c).
In response to Opposer’s interrogatories, Applicant stated that its first use of its
SWEET VIBRATIONS mark for “sex toys” or “vibrators,” the goods identified in its
Supplemental Register registration, was May 20, 2017. 16 TTABVUE 34 (Applicant’s
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Response to Opposer’s Interrogatory No. 9). Opposer’s constructive use dates for its
Registration Nos. 3631427 and 2040239 are April 6, 2006 and January 31, 1996,
respectively, which are long before the stated May 20, 2017 first use date. We find
that Opposer has established priority in the cancellation proceeding.
B. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all probative facts in evidence that are relevant to the factors set forth in In re E.I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See Cai
v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018)
(DuPont “articulated thirteen factors to consider when determining likelihood of
confusion”). “‘Not all of the DuPont factors are relevant to every case, and only factors
of significance to the particular mark need be considered,’” id. (quoting In re Mighty
Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)), but all factors
“‘must be considered’ when [they] are of record.” In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests, Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (internal quotation omitted)). A
single DuPont factor may be dispositive in a particular case. Kellogg Co. v. Pack’em
Enters., Inc., 951 F.2d 330, 21 USPQ2d 1142, 1144-45 (Fed. Cir. 1991).
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. 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
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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the goods [or services] and differences in the marks.”). Opposer discusses these key
factors, 21 TTABVUE 24-25, 32-35, 36-41; 23 TTABVUE 5-13, as well as the third
DuPont factor regarding channels of trade, DuPont, 177 USPQ at 567, 21 TTABVUE
25, 35; the fourth DuPont factor, the “conditions under which and buyers to whom
sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing,” DuPont, 177
USPQ at 567, 21 TTABVUE 25-26, 36; the fifth DuPont factor, the “fame of the prior
mark,” DuPont, 177 USPQ at 567, 21 TTABVUE 19-24, 29-31; 23 TTABVUE 14-16;
and the eighth DuPont factor, the “length of time during and conditions under which
there has been concurrent use without evidence of actual confusion.” DuPont, 177
USPQ at 567, 21 TTABVUE 41-42. Opposer also argues that all doubts on the issue
of likelihood of confusion must be resolved in its favor as the senior user. 21
TTABVUE 42.
Applicant argues that “[t]his case hinges on whether Applicant’s SWEET
VIBRATIONS mark is confusingly similar to Opposer’s GOOD VIBRATIONS mark.”
22 TTABVUE 5. Applicant also argues that Opposer’s mark is not famous under the
fifth DuPont factor, id. at 7-11, that the mark “is a descriptive and conceptually weak
term as applied to Opposer’s goods and services because it merely describes a feature
of those goods” and because the record “contains evidence that third parties use
‘vibrations’ to describe a feature of vibrators,” id. at 10, and that there is no evidence
of actual confusion. Id. at 15. Applicant does not address the second, third, or fourth
DuPont factors.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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1. Fame of Opposer’s Mark
We begin with the fifth DuPont factor, the “fame of the prior mark (sales,
advertising, length of use),” DuPont, 177 USPQ at 567, because the “[f]ame of an
opposer’s mark, if it exists, plays a ‘dominant role in the process of balancing the
DuPont factors.’” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee en 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting Recot, Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000)). “A mark ‘with
extensive public recognition and renown deserves and receives more legal protection
than an obscure or weak mark.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing
Co., 908 F.3d 1315, 128 USPQ2d 1686, 1689 (Fed. Cir. 2018) (quoting Kenner Parker
Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir.
1992)). “Because of the wide latitude of legal protection accorded a famous mark and
the dominant role fame plays in the likelihood of confusion analysis, the party
asserting fame must clearly prove it.” Weider Publ’ns, LLC v. D & D Beauty Care Co.,
109 USPQ2d 1347, 1353 (TTAB 2014), appeal dismissed per stipulation, No. 2014-
1461 (Fed. Cir. Oct. 10, 2014).
“While dilution fame is an either/or proposition—fame either does or does not
exist—likelihood of confusion fame ‘varies along a spectrum from very strong to very
weak.’” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (quoting Palm Bay Imps., 73 USPQ2d at
1694). In placing the GOOD VIBRATIONS mark on that spectrum, our “applicable
viewpoint is that of the relevant market,” not that of the general public. Id. (citing
Palm Bay Imps., 73 USPQ2d at 1694 (“Fame for confusion purposes arises as long as
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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a significant portion of the relevant consuming public . . . recognizes the mark as a
source indicator,” and “a mark’s renown within a specific product market is the proper
standard”)). Opposer offers retail and mail order services under the GOOD
VIBRATIONS mark that feature sexually oriented products such as marital aids,
electronic devices, and books, Dennis Decl. ¶ 4,14 and sells “GOOD VIBRATIONS-
branded adult toys and sexual aids,” Dennis Decl. ¶ 3, including what is identified in
Opposer’s Registration No. 3631427 as “artificial phalli.”15 We agree with Opposer
that the relevant market for purposes of assessing the strength of its mark is
“purchasers of retail store services featuring sexually oriented products such as
marital aids and sex toys . . . .” 21 TTABVUE 30.
“Direct evidence of fame, for example from widespread consumer polls, rarely
appears in contests over likelihood of confusion.” Omaha Steaks, 128 USPQ2d at
1689-90 (quoting Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 63 USPQ2d
1303, 1305 (Fed. Cir. 2002)). There is no such evidence in the record here, but “the
fame of a mark may be measured indirectly, among other things, by the volume of
sales and advertising expenditures of the goods traveling under the mark, and by the

14 Mr. Dennis testified that the “phrase ‘marital aid’ has long been used in the field of sexual
oriented products as a euphemism for sex toys.” Dennis Decl. ¶ 5.
15 The Board may take judicial notice of dictionary definitions, including definitions from
online dictionaries, for various purposes, including to clarify the meaning of words in the
identifications of goods or services in a registration or application. In re Thor Tech, Inc., 90
USPQ2d 1634, 1636 (TTAB 2009). We take judicial notice that the word “phalli” is the plural
of the noun “phallus,” which means “a symbol or representation of the penis.” MERRIAM-
WEBSTER DICTIONARY (merriam-webster.com, last accessed on June 2, 2020). Mr. Dennis
testified that these goods are known colloquially as dildos. Dennis Decl. ¶ 5.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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length of time those indicia of commercial awareness have been evident.” Id. at 1689-
90 (quoting Bose, 63 USPQ2d at 1305).
Because we must determine the likelihood of confusion at the time of trial, fame,
if it exists, is also determined as of the time of trial. See, e.g., Gen. Mills, Inc. v. Fage
Dairy Processing Indus. S.A., 100 USPQ2d 1584, 1595 n.13 (TTAB 2011), judgment
set aside on other grounds, 2014 WL 343267 (TTAB 2014)); cf. Royal Crown Co. v.
Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1049 (Fed. Cir. 2018) (finding that
Board erred in relying on survey conducted five years before the close of trial to
support its finding of acquired distinctiveness).
Opposer argues that through its “long and extensive use and substantial sales of
retail and mail order services featuring adult oriented products, Opposer’s distinctive
GOOD VIBRATIONS mark has become extremely well-known to consumers,” 21
TTABVUE 21, and is famous. Id. at 30. Opposer cites its use of the mark since 1977;
its operation of nine retail outlets; its outreach to consumers through distribution of
a mail order catalog; the operation of its website at goodvibes.com; the operation of a
Good Vibrations Antique Vibrator Museum within its retail location on Polk Street
in San Francisco, California; its presence on social media; the nature and extent of
its advertising and promotional efforts; its receipt of awards and media coverage; and
its gross revenues from the sale of sexually oriented products. Id. at 19-24, 30-31.
Applicant responds that the “record contains no credible, probative evidence that
would tend to establish [that] Opposer’s GOOD VIBRATIONS mark enjoys any level
of fame.” 22 TTABVUE 8. Applicant notes that Opposer’s retail outlets are
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concentrated in the San Francisco Bay Area in California and near Boston,
Massachusetts; that Opposer’s sales and advertising figures “are not impressive in
and of themselves” and have been given no context within Opposer’s industry; that
the awards received by Opposer also have no context and that there is no “evidence
regarding the criteria or meaning of those ‘awards,’ nor any evidence that even a
single relevant consumer would be aware of the existence of any of those ‘awards;’”
id. at 9, and that the probative value of the media articles regarding Opposer and its
mark “is diminished by the fact that they are not particularly recent.” Id. As noted
above, Applicant also contends that Opposer’s mark is conceptually weak because of
the weakness of the word “vibrations,” which Applicant argues “merely describes a
feature” of Opposer’s goods and services and is used by third parties to describe a
feature of vibrators. Id. at 10.16
a. Length of Use
Mr. Dennis testified that the GOOD VIBRATIONS mark has been in continuous
use by Opposer and its predecessors in interest since at least as early as 1977, Dennis
Decl. ¶ 6, a period of 42 years as of the time of trial in 2019. On its face, that is a
substantial period of use, but we must consider what the record shows about the

16 We reject this argument. Even if the record showed that the word VIBRATIONS in
Opposer’s mark, which has not been disclaimed in its registrations, has some descriptive
significance in relation to Opposer’s goods and services, we must presume that Opposer’s
mark as a whole is at least suggestive because Opposer’s registrations of GOOD
VIBRATIONS issued on the Principal Register without a showing of acquired distinctiveness
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Tea Bd. of India v. Republic of
Tea, Inc., 80 USPQ2d 1881, 1897 (TTAB 2006) (“A mark that is registered on the Principal
Register is entitled to all Section 7(b) presumptions including the presumption that the mark
is distinctive and moreover, in the absence of a Section 2(f) claim in the registration, that the
mark is inherently distinctive for the goods.”).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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nature and extent of Opposer’s activities during that period, including “the volume of
sales and advertising expenditures of the goods [and services] traveling under the
mark,” Bose, 63 USPQ2d at 1305, because what matters is “the length of time those
indicia of commercial awareness have been evident.” Id.17 As discussed below, Mr.
Dennis provided revenue figures only for the period between 2009 and 2018, and
advertising figures only for the period between 2014 and 2018, and there is very little
evidence in the record regarding Opposer’s operations during the 32 years between
1977 and 2009.
Mr. Dennis’s declaration includes a chart listing the locations and periods of
operation of Opposer’s stores. Dennis Decl. ¶ 8. Opposer currently operates nine
stores, but between 1977 and 1994, Opposer operated a single store, at two successive
locations, in San Francisco, California. Between 1994 and 2002, Opposer operated
two stores, the original one in San Francisco and a second in Berkeley, California.
Between 2002 and 2006, Opposer operated three stores, after adding a second store

17 The Bose court summarized the length of use of marks, and the level of sales and
advertising during the period of use, in the following cases: Nina Ricci, S.A.R.L. v. E.T.F.
Enters., Inc., 889 F.2d 1070, 12 USPQ2d 1901, 1902 (Fed. Cir. 1989) (NINA RICCI for
perfume, clothing and accessories: $200 million in sales and over $37 million in advertising
over 27 years); Kimberly-Clark Corp. v. H. Douglas Enters., Ltd., 774 F.2d 1144, 227 USPQ
541, 542 (Fed. Cir. 1985) (HUGGIES for diapers: over $300 million in sales over 9 years, and
$15 million in advertising in one year); Specialty Brands Inc. v. Coffee Bean Distribs., Inc.,
748 F.2d 669, 223 USPQ 1281, 1284 (Fed. Cir. 1984) (SPICE ISLANDS for teas, spices and
seasonings: $25 million annually in sales for spices, $12 million in sales between 1959 and
1981 for tea, and several million in advertising over 40 years); Giant Food, Inc. v. Nation's
Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 392-93 (Fed. Cir. 1983) (GIANT FOOD for
supermarket services and food products: sales over $1 billion in one year, and “considerable
amounts of money” expended in advertising over 45 years of use); Planters Nut & Chocolate
Co. v. Crown Nut Co., 305 F.2d 916, 134 USPQ 504, 506 (CCPA 1962) (MR. PEANUT design
for nuts and nut products: $350 million in sales and $10 million in advertising over 10 years).
Bose, 63 USPQ2d at 1305-06.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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in San Francisco in 2002. Opposer added a fourth store, in Brookline, Massachusetts,
in 2006. Opposer’s five other stores were each opened at some point after 2009, with
three having opened after 2012.
In what Mr. Dennis characterizes as a nationwide market for sexually oriented
products, Dennis Decl. ¶¶ 24-26, Opposer’s geographic “footprint” has always been
extremely small, as it has been limited to stores in the greater San Francisco Bay
Area and near Boston, Massachusetts.18 Opposer operated a total of only four stores
in these two areas before 2009, and currently operates only nine, and, as discussed
below, more than 70% of Opposer’s revenues since 2009 have been from brick-and-
mortar world sales, Dennis Decl. ¶ 17, through which the GOOD VIBRATIONS mark
is exposed to consumers through signage of the sort depicted below and in other
manners:

18 We take judicial notice that the cities of Cambridge and Brookline in Massachusetts, in
which Opposer’s only non-Bay Area stores are located, are near Boston and are about four
miles apart from one another. In re Guild Mortg. Co., 2020 USPQ2d 10279, at *7 (TTAB 2020)
(taking judicial notice of the distance between addresses in the California cities of Los
Angeles and San Diego).
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19
20
The small number of stores and their tight geographic concentration reduce the
impact of the decades of retail use of the GOOD VIBRATIONS mark on the mark’s
possible fame. Omaha Steaks, 128 USPQ2d at 1691 (fame of OMAHA STEAKS mark
supported by sales of goods bearing the mark in “seventy-five stores in twenty-five
states, including New York, Illinois, Florida, Georgia, Ohio, Kentucky, Missouri,

19 Dennis Decl. ¶ 8; Ex. 1 (Polk Street store in San Francisco, California.
20 Dennis Decl. ¶ 8; Ex. 1 (John F. Kennedy Street store in Cambridge, Massachusetts).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Nebraska, California, Colorado, Nevada, Arizona, Texas, Pennsylvania, and New
Jersey.”).
With respect to Opposer’s pre-2009 activities, Mr. Dennis testified that Opposer
began distribution of a mail order catalog in 1985, Dennis Decl. ¶ 9, and launched its
website at goodvibes.com in 1995. Dennis Decl. ¶ 10. He testified that the catalog was
published on a quarterly basis and “at its peak [was] sent to over 52,000 addresses”
and permitted customers to order products via regular mail. Dennis Decl. ¶ 9. He did
not state when the “peak” was, or the extent of any sales generated through the mail
order catalog, and he did not establish how long the catalog was distributed, stating
only that it “has been discontinued as the majority of customers have transitioned to
purchase their products online through the Good Vibrations website.” Dennis Decl.
¶ 11.21 He also did not testify about the extent of pre-2009 sales through Opposer’s
website, or the number of visitors to the website prior to 2013. Dennis Decl. ¶ 12.
b. Sales and Advertising
Opposer’s revenues and advertising expenditures were designated “Confidential-
Attorney’s Eyes Only” under the Board’s Standard Protective Order. Dennis Decl.
¶¶ 17, 20. We will honor those designations, but will discuss the relevant figures in
general terms because doing so is necessary to give the parties, readers of this

21 Mr. Dennis authenticated archived pages from the website “as it appeared in November
1996,” Dennis Decl. ¶ 10; Exs. 2.1-2.7, which he claimed “provided information on the GOOD
VIBRATIONS mail order catalogue and retail locations.” Dennis Decl. ¶ 10. A page entitled
“Ordering,” which provided “General Order Information” about how orders could be placed,
stated that mail orders could be placed by printing the order form available under a link and
sending it with payment to Opposer’s San Francisco store. Dennis Decl. ¶ 10; Ex. 2.5. Another
page stated that paper catalogs (apparently the referenced mail order catalogs) were
available on request. Dennis Decl. ¶ 10; Ex. 2.6.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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opinion, and any reviewing court an explanation of the basis for our finding on the
issue of the fame of Opposer’s mark. See, e.g., Noble House Home Furnishings, LLC
v. Floorco Enters., LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016).
Mr. Dennis testified about Opposer’s annual gross revenues from sales through
its brick-and-mortar stores and its website between 2009 and 2018. Dennis Decl. ¶ 17.
He described the revenues as being “earned from sales of retail services featuring
sexually oriented products such as marital aids, electronic devices, etc. under the
GOOD VIBRATIONS service mark in the United States . . . .” Dennis Decl. ¶ 17. In
2009, Opposer’s total revenues from sales through its stores and website were in the
high seven figures. For each subsequent year from 2010 to 2018, revenues from sales
through both channels of trade were just into eight figures. Total revenues for the 10-
year period between 2009 and 2018 were slightly into nine figures. Revenues from
sales through Opposer’s stores accounted for nearly 73% of Opposer’s total revenues
during that period.
Mr. Dennis also testified about Opposer’s annual advertising expenditures
between 2014 and 2018. Dennis Decl. ¶ 20. He stated that Opposer’s advertising and
promotional efforts were “via multiple channels, including but not limited to print,
online and via social media, video (broadcast via the Internet), and trade shows,”
Dennis Decl. ¶ 18, but did not specify the print or social media in which Opposer’s
advertisements have appeared, which omission reduces the probative value of his
testimony about the raw expenditures. Omaha Steaks, 128 USPQ2d at 1690 (fame of
OMAHA STEAKS mark supported in part by testimony that Opposer’s extensive
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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print advertising had appeared “in national magazines, including Time, Newsweek,
Playboy, and PC Magazine, and newspapers, including USA Today, the Wall Street
Journal, the New York Times, and the LA Times”).
Opposer’s advertising expenditures in the year 2014 were in the mid-six figures,
but its expenditures for each of the subsequent four years were considerably lower.
Between 2015 and 2017, annual expenditures were in the very low six figures, and in
2018 they were in the very high five figures. Total expenditures for the five-year
period were in the very high six figures, with nearly half of them attributable to 2014
alone. Dennis Decl. ¶ 20.
Opposer makes no effort to place its revenue and advertising figures in the context
of the overall market for sexually oriented products in the United States, arguing in
its reply brief that the Federal Circuit held in Omaha Steaks that “evidence of ‘market
share’ is not required to show the strength and fame of a mark.” 23 TTABVUE 15.
Opposer also cites a non-precedential Board decision, Paramount Int’l Exp. Ltd. v.
Q’Sai Co., Opp. No. 91221593 (TTAB Sept, 15, 2017), which it describes as “finding
that notwithstanding failure to provide ‘context’ evidence, finding that mark was
famous was still warranted.” Id.at 15-16.
We do not read Omaha Steaks as holding that it is never necessary to
contextualize sales and advertising figures to show a mark’s strength. The Federal
Circuit has “consistently accepted statistics of sales and advertising as indicia as
fame,” and “when the numbers are large, [has] tended to accept them without any
further supporting proof.” Bose, 63 USPQ2d at 1306. Here, however, the numbers are
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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not large, at least in comparison to those that have supported fame findings in
multiple Federal Circuit and Board cases.22 See, e.g., Omaha Steaks, 128 USPQ2d at
1690 (fame of OMAHA STEAKS mark supported by advertising expenditures of $45
million in 2011 and over $50 million in 2012 and 2013 and by evidence that during
the holiday season, plaintiff processes 100,000 orders per day); Bose, 63 USPQ2d at
1306 (fame of ACOUSTIC WAVE mark for loudspeaker systems supported by $50
million in annual sales and $5 million in annual advertising); Nina Ricci, 12 USPQ2d
at 1902 (fame of NINA RICCI mark for fragrance products supported by $350 million
in retail sales and around $37 million in advertising and sales promotion
expenditures between 1981 and 1986); Kimberly-Clark Corp., 227 USPQ at 542 (fame
of HUGGIES mark for diapers supported by over $300 million in sales and $15 million
in advertising in the year 1982 alone); AutoZone Parts, Inc. v. Dent Zone Cos., 100
USPQ2d 1356, 1361-62 (TTAB 2011) (fame of petitioner’s AUTOZONE mark
supported by use of mark for over 23 years, sales through over 4,000 retail stores,
advertising expenditures of over $750 million during 23-year period of use, and sales
totaling $6.8 billion in 2008 alone, with the Board finding that although petitioner
had “not placed its sales and advertising figures in context,” such context was “not
necessary here in view of the volume of sales and advertising expenditures and the

22 The numbers in the oldest three Federal Circuit cases summarized below would be much
larger if expressed in current dollars.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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fact that petitioner’s advertising reaches over 90% of the U.S. population numerous
times each year.”).23
Given the levels of Opposer’s sales figures and advertising expenditures, to show
that its mark is famous in the sexually oriented products industry, Opposer must
show that its sales and advertising have been at a level vis-à-vis its competitors
sufficient to cause its GOOD VIBRATIONS mark to stand out from its competitors’
marks. Bose, 63 USPQ2d at 1309 (noting that a “tiny percentage of the market share
for the product or a small share of advertising revenues for the product market could
undermine the weight given to the figures for assessment of fame,” while “[l]arge
market shares of product sales or large percentages of advertising expenditures in a
product line would buttress claims to fame.”); cf. Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1408 (TTAB 2009) (opposer’s claim to have
captured 75% of relevant medical products market supported finding of niche fame
within that market, but Board noted that opposer’s advertising figures were “not

23 Opposer’s sales and advertising figures also pale in comparison to those in the non-
precedential Paramount Int’l case that Opposer cites. Non-precedential decisions are not
binding on the Board, In re Procter & Gamble Co., 105 USPQ2d 1119, 1120-21 (TTAB 2012),
but the Paramount Int’l does not aid Opposer in any event. In that case, the opposer showed
that it had sold over 153 million cases of water and had spent $137 million in advertising
during the 11 years prior to trial, 34 TTABVUE 7 (Opposition No. 91221593), and its witness
testified that it was “the number one brand of bottled water in the United States.” Id. at 8.
The Board found that there was “no context from which to determine the accuracy of the
figures in Opposer’s media data sheet, which was apparently prepared at Opposer’s behest,”
and that it was “unclear how Opposer defines ‘premium’ bottled water brands, how many
products fit in that category or even what being ‘number one’ in that category means with
respect to the bottled water market as a whole.” Id. at 9. Nevertheless, the Board found that
because the opposer’s “marketing expenditures are substantial and its unit sales figures are
impressive,” id., its FIJI mark was “commercially famous for a premium quality bottled
water.” Id. at 10.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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particularly impressive” and that “the problem that we have in assessing the
effectiveness of the advertising expenditures is that there is no testimony or evidence
regarding whether opposer’s advertising expenditures are large or small vis-à-vis
other comparable medical products.”). Opposer has not shown the significance of its
sales and advertising figures within the sexually oriented industry in the United
States, which the record indicates is quite substantial in size.
Mr. Dennis testified that the “prospective purchasers of retail and mail order
services featuring sexually oriented products such as marital aids, electronic devices,
media and books comprise a wide variety of consumers, due to adult toys and sexual
aids being a popular item for adults in the United States,” Dennis Decl. ¶ 24, and
that “[a]dult toys and sexual aids can be bought by the general public online or off the
shelf via retail and mass merchandisers (including CVS, Walmart and Amazon.com).”
Dennis Decl. ¶ 26. We can infer from the availability of these goods through CVS,
Walmart, and Amazon.com, and from their sale under numerous marks, Dennis Decl.
Exs. 3-5, 7,24 that there is a large market for these goods in the United States, but we
have no sense whatsoever of Opposer’s position within it. “Market share is but one
way of contextualizing ad expenditures or sales figures,” Omaha Steaks, 128 USPQ2d
at 1690, but Opposer offers neither that metric nor any other to show the significance
of its revenue and sales figures vis-à-vis those of its competitors.

24 Opposer made of record more than 30 third-party registrations of marks covering goods
and services in Opposer’s industry. 21 TTABVUE 12-13 (citing Opposer’s First Notice of
Reliance Exs. 24-57 (14 TTABVUE 83-198)). Opposer also notes that with respect to the
target market for the goods, “Applicant identifies the type and class of consumer for personal
vibrators simply as ‘[a]dults.’” Id. at 25 (citing 16 TTABVUE 36 (Applicant’s Response to
Opposer’s Interrogatory No. 15)).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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c. Media Coverage and Other Evidence
Opposer offers a variety of other forms of evidence to show the fame of its mark,
including the number of visits to its website; its operation of the Good Vibrations
Antique Vibrator Museum; its social media presence; awards and other recognition
that it has received; “significant unsolicited, third-party nationally publicity for its
retail services . . . provided under the GOOD VIBRATIONS mark, including being
featured on major news networks CNN and Fox News and in nationally read
publications such as Cosmopolitan, Marie Claire, Men’s Health, Redbook, Bustle, and
Self;” 21 TTABVUE 22; and media coverage of Opposer and its goods and services,
including the recommendation of its products by sex therapist Dr. Ruth Westheimer.
Id. at 22-23.
We turn first to the media coverage. Opposer made of record 50 articles, three
book excerpts, and a Wikipedia entry, that feature or mention Opposer, 17 TTABVUE
10-206 (Exs. 64-117), and Mr. Dennis testified that Opposer’s mark has been
“featured on major news networks CNN and Fox News and in nationally read
publications such as Cosmopolitan, Marie Claire, Men’s Health, Redbook, Bustle and
Self.” Dennis Decl. ¶ 22. The articles and book excerpts are listed by title, publication,
and publication date in Opposer’s main brief, 21 TTABVUE 14-16, but Mr. Dennis
provided no particulars for the claimed coverage on CNN and Fox News or in the
listed national magazines, including what it involved or when it occurred, or
examples of such publicity, and we have given his unsupported testimony on these
matters no weight on the issue of the fame of Opposer’s mark. Cf. Omaha Steaks, 128
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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USPQ2d at 1690-91 (accepting witness testimony regarding exposure of OMAHA
STEAKS mark on television programs and in movies).
Opposer argues that the 50 articles “refer to and acknowledge the renown of
Opposer’s retail store services featuring sexually oriented products.” 21 TTABVUE
22. The probative value of news articles as evidence of fame is limited because, as
Opposer acknowledges in response to Applicant’s hearsay objection, “[a]lthough news
articles may be used as evidence for what they show on their face, they may not be
relied on for truth of the statements contained therein.” TV Azteca, S.A.B. de C.V. v.
Martin, 128 USPQ2d 1786, 1790 (TTAB 2018) (citing Fed. R. Evid. 802 and Syngenta
Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.7 (TTAB 2009) (“A printed
publication is only admissible for what it shows on its face; unless it falls within an
exception to the hearsay rule it will not be considered to prove the truth of any matter
stated in the publication.”)); see also Blue Man Productions, Inc. v. Tarmann, 75
USPQ2d 1811, 1813 (TTAB 2005), rev’d on other grounds, 2008 WL 6862402 (D.D.C.
April 3, 2008).25 Insofar as none of the exceptions to the rule against hearsay apply,
we cannot consider the articles to prove the truth of any matter stated therein.
“However, such materials are frequently competent to show, on their face, matters of
relevance to trademark claims (such as public perceptions), regardless of whether the

25 Opposer also acknowledges the limited use to which articles may be put when it argues in
its reply brief that an article about The Beach Boys’ song Good Vibrations submitted by
Applicant “(like the other internet printouts Applicant submitted) is only competent evidence
that some segment of the public interested in the particular style of music covered by Rolling
Stone (Rock ‘N Roll) may have been exposed to the magazine’s rankings at some point and
time. It is not evidence that the song is, in fact, one of the ‘greatest songs of all time’ or famous
(or even well-known) among consumers of Opposer’s goods and services.” 23 TTABVUE 13.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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statements are true or false.” Harry Winston, Inc. v. Bruce Winston Gem Corp., 111
USPQ2d 1419, 1428 (TTAB 2014). Nonetheless, as discussed below, there are specific
problems with the articles that reduce their probative value on the fame of Opposer’s
mark, with some of the articles suffering from more than one of the problems.
First, a majority of the articles are quite dated. Fifteen appeared prior to 2000,26
and another 16 appeared between 2000 and 2010.27 Only 19 appeared within the past
10 years.28 Because we must determine the fame of the GOOD VIBRATIONS mark
as of the time of trial in 2019, the age of many of these articles significantly reduces
their probative value on that issue, as the exposure of the mark to readers of articles
many years ago tells us relatively little, if anything, about how the mark is perceived
today.

26 These articles appeared in 1992 (San Francisco Examiner, Philadelphia Inquirer); 1993
(Miami Herald, South Florida Sun Sentinel); 1994 (San Francisco Examiner, South Florida
Sun-Sentinel (two), Los Angeles Daily News); 1995 (Chicago Tribune, San Francisco
Chronicle, The Women’s Review of Books); 1996 (Buffalo News, San Francisco Chronicle); and
1997 (Contra Costa Times, Pittsburg Post-Gazette). 17 TTABVUE 16-18, 24-27, 60-61, 76-79,
94-98, 105-06, 125-29, 142-43, 147-48, 152-62, 174-76, 204-06.
27 These articles appeared in 2000 (New York Post); 2002 (Chicago Reader, Chicago Tribune);
2003 (Mountain Xpress, San Francisco Chronicle (two)); 2004 (The Louisville Courier
Journal, Grand Rapids Press, Newark Star Ledger); 2006 (Boston Herald); 2007 (Missoula
Independent, Chicago Tribune); 2008 (The Louisville Courier Journal, Kansas City Star);
2009 (Wisconsin State Journal); and 2010 (Life Science Weekly). 17 TTABVUE 19-21, 32-36,
41-51, 102-04, 107-20, 123-24, 130-33, 177-79, 192-94, 198-203.
28 These articles appeared in 2011 (Redding Record Searchlight, Oakland Tribune); 2012
(Tampa Bay Times, The Arizona Republic, Chicago Tribune); 2013 (Brookline TAB); 2014
(U.S. News & World Report, San Francisco Business Times, Endgadget HD); 2015 (The
Commercial Dispatch (Columbus, Mississippi), Business N.H. Magazine); 2016 (Huffington
Post, U-Wire); 2017 (The Seattle Times, State News Service, Endgadget HD, Glamour
Magazine, San Francisco Chronicle); and 2018 (San Francisco Chronicle). 17 TTABVUE 10-
12, 13-15, 22-23, 28-31, 37-40, 62-64, 85-93, 99-101, 121-22, 144-46, 149-51, 163-73, 180-91,
195-97.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Four such articles illustrate why the stale evidence is problematic. Opposer
argues, in the present tense, that it “is frequently recommended as a trusted retailer
of vibrators, including by preeminent sex therapist Dr. Ruth Westheimer in her
syndicated advice column,” 21 TTABVUE 22, but Opposer bases this argument on
recommendations in columns that appeared in publications between 1993 and 1995,
about a quarter century before trial in 2019.29 In 2019, there were undoubtedly many
prospective purchasers of Opposer’s goods and services who were not even alive when
“Dr. Ruth” made the cited recommendations. Such purchasers, as well as older ones,
would have no reason to be aware of, much less to retrieve and read, her advice
columns, or other articles mentioning Opposer, that appeared 20 or more years ago.
Rule 803(16) of the Federal Rules of Evidence provides an exception to the rule
against hearsay set forth in Rule 802 for “[a] statement in a document that was
prepared before January 1, 1998, and whose authenticity is established.” Fed. R.
Evid. 803(16). The 15 pre-1998 articles in the record arguably qualify as such “ancient
documents,” but we find that those articles are simply too remote in time to have any
significant probative value regarding whether Opposer’s mark is famous today even
if we accepted them as substantive evidence of the truth of the matters stated in
them. We further find that the 16 articles that appeared between 2000 and 2010 also

29 17 TTABVUE 60-61, 105-06, 142-43, 147-48. In two of the articles, “Dr. Ruth” also advised
her reader to contact either Opposer, or another company, to purchase a vibrator. Id. at 105-
06 (“To purchase a vibrator, write to: Good Vibrations . . . or Eve’s Garden . . . .”), 142-43
(“There are several discreet mail-order companies that I recommend which have a large
selection. You can write for a catalog to Eve’s Garden . . . or Good Vibrations . . . .”). These
articles are also examples of ones in which Opposer is mentioned together with one or more
of its competitors, which we discuss in more detail below.
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have limited probative value on the issue of the current recognition of Opposer’s
mark.
Second, a number of the post-2000 articles appear to be from regional, local, or
specialized publications, including the Mountain Xpress (Buncombe County, North
Carolina), the Grand Rapids Press (Grand Rapids, Michigan), the Missoula
Independent (Missoula, Montana), the Wisconsin State Journal (Madison,
Wisconsin), Life Science Weekly, the Redding Record Searchlight (Redding,
California), the Brookline TAB (Brookline, Massachusetts), Endgadget HD, The
Commercial Dispatch (Columbus, Mississippi), Business N.H. Magazine, U-Wire, and
State News Service (Las Vegas, Nevada). These publications “are not likely to be seen
by large numbers of the general public,” Blue Man Productions, 75 USPQ2d at 1817,
or by large numbers of consumers of sexually oriented products. “We consider these
articles to be of extremely limited value in proving the fame of [O]pposer’s mark.”
Id.30
Third, several of the post-2000 articles simply mention Opposer in passing in the
course of discussing broader subjects. These include a April 22, 2000 New York Post
article, which notes that “Good Vibrations, a San Francisco-based manufacturer is
planning to air-lift a load of marital aids to” Alabama if a state ban on local sales of
such products were reinstated by a federal appeals court;31 a March 16, 2004 Grand

30 Several of the post-2000 articles are from publications in the two metropolitan areas where
Opposer has stores. These articles presumably would be read primarily by consumers in those
areas, and they have limited probative value in showing that Opposer’s mark is well known
elsewhere in the United States. Blue Man Productions, 75 USPQ2d at 1817-18.
31 17 TTABVUE at 19-21.
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Rapids Press article regarding the sexual practices of older Americans, which states
that one particular sex educator “refers people to the Good Vibrations sex catalog;”32
a October 1, 2011 Oakland Tribune article discussing various businesses in the East
Bay, including Opposer;33 a April 22, 2012 Tampa Bay Times article about Earth Day,
in which the author mentions a “pitch” that he received from Opposer urging
consumers to “green your bedroom with ecorotic® toys and body products from Good
Vibrations, the original women-owned, adult toy retailer”;34 a July 1, 2017 Glamour
magazine article that answers numerous questions regarding sex and mentions that
in 1976 Opposer’s founder Joani Blank wrote “Good Vibrations, a guide to orgasming
with a vibrator—or, in seventies speak, ‘buzzing off’”;35 and a September 5, 2018 San
Francisco Chronicle article discussing the history and current situations of several
“legacy” retailers in the San Francisco Bay Area, including Opposer.36 We find that
these articles have little probative value on the strength of Opposer’s mark because
they do not feature Opposer or its mark. Blue Man Productions, 75 USPQ2d at 1817-
18.
Fourth, a larger number of the post-2000 articles mention Opposer together with
one or more competitors, often in the course of discussing broader subjects. These
include a March 20, 2002 Chicago Tribune article discussing the availability of

32 Id. at 112-16.
33 Id. at 195-97.
34 Id. at 89-90.
35 Id. at 163-73.
36 Id. at 99-101.
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information regarding sex on the Internet, which mentions early2bed.com, the
website of “Early to Bed, a women-oriented erotic boutique in Chicago,” and lists
Opposer’s website as among sources of such information;37 a January 21, 2003 San
Francisco Chronicle article regarding the rise of the city’s adult-entertainment
business, which discusses Opposer and its new Polk Street store, as well as what the
article calls a “well-established rival,” Blowfish, an online and catalog retailer, and a
second local competitor, Xandria.com of Brisbane, California;38 a May 2, 2003 San
Francisco Chronicle article discussing “[t]wo San Francisco companies specializing in
adult merchandise – Good Vibrations and MyPleasure – [that] saw online orders from
military personnel abroad surge during the troop buildup in the Persian Gulf and the
outbreak of hostilities in Iraq”;39 an April 29, 2007 Chicago Tribune article regarding
the chemicals in sex toys, which mentions Opposer and other companies;40 a March
14, 2008 Kansas City Star article about the founder of Wink, a sex toys shop in Kansas
City, Missouri, who lived “in San Francisco and visited Good Vibrations, a similar
store offering sexual information and products, and decided it was needed in the
Kansas City area” and who contemplated having another person “take over the day-
to-day retail operations so she can work full time with Joani Blank, founder of Good
Vibrations and a writer and educator in sexuality”;41 a June 4, 2012 Arizona Republic

37 Id. at 198-203.
38 Id. at 130-33.
39 Id. at 102-04.
40 Id. at 192-94.
41 Id. at 177-79.
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article discussing the impact of the book Fifty Shades of Grey on sales in sex shops
across the country, which mentions Opposer and four other retailers;42 a July 29, 2012
Chicago Tribune article also discussing the impact of Fifty Shades of Grey, which
states that “[a]t San Francisco-based Good Vibrations, sales of bondage sex toys have
increased 65 percent and erotica 50 percent since ‘Fifty Shades’ rose to the top of the
best-seller lists this spring,” and discusses another retailer and a manufacturer of sex
toys;43 a March 27, 2014 U.S. News & World Report article quoting a “co-founder of
Babeland, a sex toy retailer with locations in Seattle and New York” that “[s]tores
such as Babeland and San Francisco-based Good Vibrations are ‘missionary’ in their
intent,” and mentioning other companies with stores in Portland and Baltimore;44 an
August 27, 2014 Endgadget HD article about the Hitachi Magic Wand sex toy, which
the article states was first available at Eve’s Garden and later at Opposer’s first
store;45 an October 1, 2015 Business NH Magazine article discussing OhMiBod, a New
Hampshire sex toy company, which states that the company “sells on Brookstone and
Amazon as well at female-friendly specialty stores, such as Good Vibrations in
Brookline, Three Wicked Women in Rye and CS Boutique in Portland, Maine”;46 a
July 8, 2016 Huffington Post article stating that “[v]ibrators and other sex toys
designed to enhance sensation are available from companies like Good Vibrations or

42 Id. at 91-93.
43 Id. at 149-51.
44 Id. at 13-15.
45 Id. at 188-91.
46 Id. at 144-46.
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even Amazon”;47 and a July 25, 2017 Seattle Times article discussing the acquisition
of Babeland by “Bay Area adult-toys purveyor Good Vibrations” and the history of the
companies’ operations.48 We find that these articles have little probative value on the
strength of Opposer’s mark because they identify Opposer as simply one of many
companies in the sexually oriented products business. Cf. Safer, 94 USPQ2d at 1042
(fame or public renown of opposer’s DEER AWAY mark for repellant could not be
inferred from studies in which “DEER AWAY was one of many repellants identified
in the studies” and “was in no way singled out as a particularly well-known product.”).
Opposer relies most heavily on the articles that refer to Opposer as a “famous” or
“legendary” business, or contain other positive statements regarding its reputation
or recognition in the sexually oriented products industry. 21 TTABVUE 22-23. Three
of the articles pre-date 2000,49 and we accordingly give them very little weight
regarding the fame of Opposer’s mark in 2019. Several of these post-2000 articles

47 Id. at 10-12.
48 Id. at 22-23.
49 Id. at 94-96 (January 25, 1996 San Francisco Chronicle article touting “[a]nother Famous
Ess Eff First! Good Vibrations, the sexcessful sex toy store, has gone on the World Wide Web
with ‘the first on-line Vibrator Museum,’ which includes ‘the wooden crank vibrator Queen
Victoria might have used.’ Unfortunately, the Queen is unavailable for comment and Prince
Albert is still in the can”); 174-76 (November 11, 1995 San Francisco Chronicle article
discussing the results of a study of the demographics of the market for sex toys, and quoting
“Joani Blank, owner for 20 years of the pioneering Good Vibrations store in San Francisco,
where vibrators are the primary items for sale,” as stating that “I applaud these findings”
and that “we need more studies. I’d like to know the profile of people who do not use them.
But this helps show that sex toys are not just for fringe people. Sex is all-American”); 204-06
(May 1, 1995 Women’s Review of Books article reviewing the book The Woman-Centered
Economy: Ideals, Reality, and the Space in Between, which review discusses feminist-run
businesses, and states that “Good Vibrations, San Francisco’s famous feminist sex store,
changed from a sole proprietorship owned by Joani Blank to a worker-owned business”).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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have been discussed above in connection with other deficiencies in Opposer’s
evidence, but they do not establish the renown of Opposer’s mark in any event.
These post-2000 articles are a June 14, 2002 Chicago Reader article discussing
the owner of Early to Bed, described as “Chicago’s first woman-owned sex shop,”
whom the article states served “an unofficial apprenticeship at Good Vibrations, San
Francisco’s legendary woman-owned adult boutique”;50 the January 21, 2003 San
Francisco Chronicle article regarding Opposer’s new store on Polk Street and
mentioning two of Opposer’s Bay Are competitors, which describes Opposer as a
“pioneering sex-toy merchant”;51 a September 2, 2003 Mountain Xpress article about
the author’s visit to four adult bookstores and sex shops in Buncombe County, North
Carolina, in which he states that “[w]hen all is said and done, however, the only really
shocking thing about Buncombe County’s adult-bookstore scene is the total lack of
anything resembling an explicitly feminist- or sexologist-style establishment à la San
Francisco’s well-known - and well-respected - Good Vibrations”;52 a February 11, 2004
Newark Star-Ledger article regarding romantic foods for Valentine’s Day and a
cookbook entitled “InterCourses” about foods that are aphrodisiacs, which states that
“‘InterCourses’ is the only cookbook sold by the legendary San Francisco sex toy shop
Good Vibrations”;53 a May 31, 2007 Missoula Independent article about global
warming, which states that the “famed adult store chain Good Vibrations announced

50 Id. at 107-08.
51 Id. at 130-33.
52 Id. at 49-51.
53 Id. at 117-20.
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they would no longer sell products containing ‘phthalates, controversial chemical
plasticizers believed by some to be hazardous to humans and the environment
alike’”;54 a December 14, 2010 Life Science Weekly article regarding products for
romance during long winter nights from “Good Vibrations, the woman-focused
retailer trusted for more than three decades to provide a comfortable, safe
environment for finding sexy and educational materials to put the spice back in the
bedroom”;55 a February 6, 2011 Redding Record Searchlight article regarding
Valentine’s Day gifts stating that “[i]f you want to add a little more spice to your
Valentine’s Day evening, the Bay Area’s famed Good Vibrations can help bring some
playful fun to the bedroom” through the I Dare You card game;56 the June 4, 2012
Arizona Republic article regarding the impact of the book Fifty Shades of Grey, which
describes Opposer as “a leading online retailer of adult toys”;57 an October 13, 2015
Commercial Dispatch article reviewing the book The Sex & Pleasure Book: Good
Vibrations Guide to Great Sex for Everyone, which begins “[t]he famous Good
Vibrations store was founded in San Francisco in 1977, selling sex toys and

54 Id. at 109-111.
55 Id. at 123-24.
56 Id. at 121-22.
57 Id. at 91-93.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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vibrators”;58 and an October 13, 2017 San Francisco Chronicle article discussing San
Francisco’s Top 10 “heritage” retailers, including Opposer.59
The characterizations of Opposer in these articles as “legendary,” “pioneering,”
“well-known and well respected,” “famed,” or “famous,” do not establish that Opposer
and its mark are, in fact, famous, Blue Man Productions, 75 USPQ2d at 1815, and
“can only be considered as the author[s’] view[s] . . . .” Id. We accord them some
weight, however, because they exposed the authors’ views to readers, although, as
noted above, a number of the publications in which the views appeared are regional
or specialty publications that Opposer has not shown were widely distributed to
prospective purchasers.
Opposer also relies on three excerpts from books published in 2012 and 2013,60
and a Wikipedia entry.61 The book excerpts differ from many of the newspaper and
magazine articles because the books are not works that appear to have wide general
circulation. All three books appear to be in the nature of academic studies of the
sexually oriented products industry rather than works that we can safely assume
were read widely by consumers, and Opposer provides no information to the contrary.

58 Id. at 62-64. Mr. Dennis’s declaration provides no information regarding this book, which
the article describes as having been self-published by Opposer, apparently in or about 2015,
and the book is not mentioned on the pages from Opposer’s website that are attached to his
declaration.
59 Id. at 180-84.
60 Id. at 52-59 (Commodity Activism Cultural Resistance in Neoliberal Times (New York
University Press 2012)); 65-75 (The Feminist Porn Book The Politics of Producing Pleasure
(The Feminist Press at the City University of New York 2013)); 134-41 (New Sociologies of
Sex Work (Routledge 2012)).
61 Id. at 80-84.
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This alone reduces their probative value on the issue of the fame of Opposer’s mark.
Cf. Safer, 94 USPQ2d at 1042 (Board could not infer fame of mark mentioned in
university-sponsored reports and studies in the absence of evidence of their
circulation). At the same time, the book excerpts are similar in nature to many of the
articles discussed above, and similarly deficient, because they simply mention
Opposer as well as competitors in the course of discussing other broader subjects.
The excerpt from Commodity Activism Cultural Resistance in Neoliberal Times
discusses female-owned businesses. It states that “a number of feminist sex toy
businesses have joined together since 1996 in declaring the month of May a
nationwide celebration of masturbation,” that Opposer conceived of “Masturbation
May,”62 that Opposer was founded several years after Eve’s Garden was founded in
New York,63 and that “[b]y the early 1990s, Good Vibrations had developed a national
reputation as a clearinghouse for sexual information and a leader in the alternative
sex vending movement.”64 The excerpt also states that “businesses based on the Good
Vibrations model of retailing—an educationally oriented and quasi-therapeutic
approach to selling sex toys—can be found in dozens of cities across the country and
in other countries too,” naming as examples Babeland, Early to Bed in Chicago, and
Self-Serve in Albuquerque, among others.65

62 17 TTABVUE 55.
63 Id. at 58.
64 Id. at 59.
65 Id.
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The excerpt from The Feminist Porn Book relates the author’s experience in selling
porn on the floor of a Babeland store in New York in 2001. She describes Babeland as
“part of a much larger network of sex-positive retailers whose raison d’être is
providing customers—especially women—with quality products and accurate
information in warm and welcoming retail environments.”66 Named as part of the
“much larger network” are Opposer, Eve’s Garden, Self-Serve, and Sugar in
Baltimore.67 Opposer and “its sister stores” are described as “launching pads for a
number of sex-positive writers, sex toy manufacturers, and pornographers who have
gone on to leave their own sex-positive stamps on the world.”68 The excerpt goes on
to identify some of Opposer’s former employees who founded other companies,69 and
to describe Opposer’s formation, early operations, and status as a model for other
stores and an early seller of porn and provider of sexual education.70
The excerpt from New Sociologies of Sex Work characterizes Opposer as having
ushered in a new dawn of sex toy retailing and having created a new model of
retailing that became a “prototype for other women-owned and oriented businesses”
in the United States, including Babeland, Smitten Kitten in Minneapolis, Early to
Bed, Self-Serve, and Sugar.71 The bulk of the article “discusses the genesis and

66 Id. at 68-69.
67 Id. at 69-70.
68 Id. at 70.
69 Id.
70 Id. at 72-75.
71 Id. at 135.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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circulation of the Good Vibrations model,”72 with frequent references to Opposer,
former employees, and Opposer’s “sister stores.”73
The Wikipedia entry discussing Opposer, like all Internet evidence, can be
considered only for what it shows on its face, not for the truth of matters such as
Opposer’s revenue, number of employees, and historic operations, that appear in the
pages. “Internet evidence, similar to printed publications, is only admissible for what
it shows on its face, and because it does not fall within the exception to
the hearsay rule, will not be considered to prove the truth of any matter stated
therein.” WeaponX Performance Prods. v. Weapon X Motorsports, Inc., 126 USPQ2d
1034, 1041 (TTAB 2018) (quotation omitted). We afford the Wikipedia entry some
probative value on the issue of strength, however, to the extent that it shows that
Opposer has achieved recognition significant enough that a Wikipedia entry devoted
to it has been created.
Mr. Dennis also testified that Opposer “has a significant presence on social
media,” with “popular accounts on social media platforms” such as Facebook, Twitter,
Instagram, Pinterest, and YouTube, Dennis Decl. ¶ 19; that Opposer “has received
multiple awards recognizing the superior retail services it offers under the GOOD
VIBRATIONS mark,” including “XBIZ Awards – Retailer of the Year – Chain – 2018;
XBIZ Awards – Retailer of the Year –Boutique – 2015 & 2016; Dig This Awards –
Winner – Sex/Lingerie – 2014; SW Weekly, Best of SF, 2018; AVN Novelty Business

72 Id. at 136.
73 Id. at 136-40.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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‘O’ Award for ‘Outstanding Online Retailer’—2009 and 2010; the AVN Award of
Excellence—2013; and the AVN Hall of Fame -2011,” Dennis Decl. ¶ 21; that
Opposer’s website has received between 2.2 million and 3.3 million unique visitors
annually since 2014, Dennis Decl. ¶ 12; and that since 2012 Opposer has “operated
the GOOD VIBRATIONS Antique Vibrator Museum within its San Francisco Polk
Street store location,” which he describes as “a tourist destination in its own regard,
featured in travel guides such as Frommer’s, Atlas Obscura and Roadtrippers.”
Dennis Decl. ¶ 15; Exs. 6.1-6.3.
Many companies have “a significant presence on social media,” but this alone does
not make their marks famous. Mr. Dennis does not state the reach or exposure of
Opposer’s social media accounts in terms of their number of followers, “likes,” or other
metrics, or provide the basis for his claim that they are “popular.” Without such
context, his testimony about Opposer’s social media presence has little probative
value. See Omaha Steaks, 128 USPQ2d at 1690 (noting that opposer’s witness
specified that opposer had more than 300,000 Facebook followers).
With respect to the industry awards that Opposer has received, Mr. Dennis does
not describe their nature, how many companies are eligible to receive them and
actually receive them, the criteria for their award and, most importantly, the extent
of consumers’ knowledge of the awards.74 Without such context, his testimony

74 Mr. Dennis does not state whether Opposer has done anything to publicize its status as the
recipient of these awards, Dennis Decl. ¶ 21, but the recent pages from Opposer’s website in
the record do not identify Opposer as their recipient. Dennis Decl. Ex. 3.1-4.2. By contrast,
the website of Lovehoney, one of Opposer’s competitors, offers the Desire vibrator, which the
website touts as having been “Voted Best Quiet Vibrator 2019 by Women’sHealth.” Dennis
Decl. Ex. 6.4.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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regarding the awards does not establish that Opposer’s mark is famous, but only that
Opposer’s “products [and services] are perceived to be of high quality or are
recognized only by industry groups.” Spier Wines (Pty) Ltd. v. Shepher, 105 USPQ2d
1239, 1245 (TTAB 2012).
Mr. Dennis’s testimony regarding the number of annual visitors to Opposer’s
website establishes that many people visit the site each year and, as noted above,
because about 30% of Opposer’s sales are online, we can infer that at least some of
the visitors purchased goods through Opposer’s website. The number of such visitors
is quite modest, however, in comparison to such figures in cases in which marks have
been found to be famous. See Weider Publ’ns, 109 USPQ2d at 1354 (three million
monthly unique visitors and other evidence supported finding that opposer’s SHAPE
mark was famous); AutoZone, 100 USPQ2d at 1361-62 (3.4 million visitors per month
and other evidence supported finding that petitioner’s AUTOZONE mark was
famous). We find that the number of annual visitors to Opposer’s website has little
probative value regarding the fame of its mark.75
Finally, Opposer’s operation of the Good Vibrations Antique Vibrator Museum
within its San Francisco Polk Street store location since 2012 similarly has little

75 Applicant argues that this evidence is deficient because there is “[n]o evidence whether any
of those ‘visits’ resulted in a sale, no evidence regarding the percentage those of [sic] ‘visits’
that were human generated vs. automated ‘bot’ generated, no evidence regarding the
percentage of those ‘visits’ that lingered rather than immediately bounced, and no evidence
regarding the percentage of those ‘visits’ from people looking for vibrators vs. people
searching for the lyrics to the truly-famous Beach Boys Good Vibrations hit song.” 22
TTABVUE 9. Applicant cites no authority that such granular detail regarding website visits
is even collectible, much less that it must be provided to make them probative of the fame of
a mark. The number of visitors is what is generally probative of a mark’s strength.
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probative value regarding the fame of its mark. Although Opposer made of record
several articles about the museum, Dennis Decl. Exs. 6.1-6.3, and pages about the
museum from Opposer’s website at antiquevibratormuseum.com, Dennis Decl. Ex.
6.4, we do not know the number of visitors to the museum (or the museum-specific
website), or the extent, if any, to which the museum visitors were separate from
customers visiting the store itself.
d. Conclusion Regarding Strength of Opposer’s Mark
For the reasons discussed above, and based on the record as a whole, we find that
Opposer did not clearly prove that its GOOD VIBRATIONS mark has achieved the
level of fame of the marks in the cases that it cites, 21 TTABVUE 30-31,76 and the
cases that we discuss. As noted above, however, the fifth DuPont factor does not
involve a binary choice where “fame either does or does not exist,” Joseph Phelps
Vineyards, 122 USPQ2d at 1734, and we must place Opposer’s GOOD VIBRATIONS
mark along the “spectrum from very strong to very weak.” Id. We therefore find, on
the basis of the record as a whole, that Opposer proved that its mark has some renown

76 One of those cases is the Board’s non-precedential decision on remand from the Federal
Circuit’s decision in Joseph Phelps Vineyards. 21 TTABVUE 31 (citing Joseph Phelps
Vineyards LLC v. Fairmont Holdings, Inc., Canc. No. 92057240, 2019 WL 140540, at *5
(TTAB Jan. 3, 2019)). Opposer argues that the Board’s finding that the petitioner’s
INSIGNIA mark had “‘achieved, overall, a significant level of fame among consumers of
wine,’” id. (quoting Joseph Phelps Vineyards, 2019 WL 140540, at *5), was based on
“Petitioner’s 40 years of use, significant annual sales since 2009, receipt of several awards,
and articles referencing Petitioner’s mark in general and industry publications.” Id. We are
not bound by this non-precedential decision, and must determine whether Opposer’s mark is
famous based on the record in this case. We note, in any event, that in Joseph Phelps
Vineyards, the petitioner’s annual sales figures were significantly higher than Opposer’s
here, and were sustained over a period almost twice as long as the period for which Opposer
reported its sales, and that the petitioner’s sales figures were given context by the other
evidence of record in that case.
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and is entitled to more than “the normal scope of protection to which inherently
distinctive marks are entitled.” Bell’s Brewery, Inc. v. Innovation Brewing, 125
USPQ2d 1340, 1347 (TTAB 2017). The fifth DuPont factor thus slightly supports a
finding of a likelihood of confusion.
2. Similarity or Dissimilarity of the Goods and Services, and
the Channels of Trade
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,’” while the third
DuPont factor considers “the similarity or dissimilarity of established, likely-to-
continue trade channels.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,
1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). Our analysis under these
factors is based on the identifications of the goods in Applicant’s application and
registration, and the identification of goods and services in Opposer’s registrations.
Id.; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161-63 (Fed. Cir. 2014).
It is “not necessary that the goods [and services] be identical or even competitive
to support a finding of a likelihood of confusion.” 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)). “[L]ikelihood of
confusion can be found ‘if the respective goods [and services] are related in some
manner and/or if the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate from the same source.’” Id.
(quoting 7-Eleven, 83 USPQ2d at 1724). Goods may be related to services, and it is
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“well established that ‘confusion may be likely to occur from the use of the same or
similar marks for goods, on the one hand, and for services involving those goods, on
the other.’” Detroit Athletic, 128 USPQ2d at 1051 (quoting TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) Section 1207.01(a)(ii)).
As noted above, Applicant does not address the second and third DuPont factors
in its brief. The record shows that certain of the involved goods in the opposition are
legally identical, and in the cancellation, the goods identified in Applicant’s
registration are sold in the same channels of trade through which the services
identified in Opposer’s registration are provided.
“We begin with the identifications of goods and services in the registration[s] and
application under consideration.” In re Country Oven, Inc., 2019 USPQ2d 443903, at
*5 (TTAB 2019). The goods in Applicant’s application are identified as “Sex toys;
Adult sexual stimulation aids, namely, vibrators,” and the goods in Applicant’s
registration are identified as “Adult marital and sexual aids, namely, massagers,
vibrators and stimulators.” Opposer’s registrations cover goods identified as “adult
sexual aids, namely, artificial phalli,” and services identified as “retail and mail order
services, featuring, sexually oriented products such as marital aids, electronic devices
media and books.”
Applicant admitted that the “sex toys” identified in its application encompass the
“artificial phalli” identified in Opposer’s Registration No. 3631427, 16 TTABVUE 19
(Applicant’s Response to Opposer’s Request to Admit No. 26), and those goods are
thus legally identical. The “retail and mail order services” featuring “sexually-
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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oriented products such as marital aids” identified in Opposer’s Registration No.
2040239 expressly involve the sale of “marital aids,” which is a category of goods that
is described in Applicant’s registration as including “massagers, vibrators and
stimulators.” The services in Opposer’s Registration No. 2040239 thus feature the
sale of at least one of the goods, “vibrators,” that is identified in both Applicant’s
application and registration.77 Cf. Country Oven, 2019 USPQ2d 443903, at *5 (“It is
a matter of common knowledge that retail bakery shops sell bakery products.”). “We
find that the identifications in the application and registration[s] themselves support
finding the goods and services are related.” Id. at *6.
Opposer also made of record more than 20 active third-party registrations of
marks for both online retail store services in the field of sexually oriented products,78
and vibrators, which are identified in Applicant’s application and registration. 14
TTABVUE 83-168. They are “relevant to show that the goods and services are of a
type that may emanate from a single source under one mark.” Country Oven, 2019
USPQ2d 443903 at *8 (citations omitted).
As noted above, the goods identified in Applicant’s application are legally identical
to the goods identified in Opposer’s Registration No. 3631427, and the second DuPont
strongly supports a finding of a likelihood of confusion in the opposition. With respect

77 We need not consider the relatedness of each good in Applicant’s application and
registration to the goods and services identified in Opposer’s registrations. “[I]t is sufficient
for finding a likelihood of confusion if relatedness is established for any item encompassed by
the identification of goods within a particular class in the application [and registration].” In
re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
78 These goods are identified by various terms in the identifications.
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to the cancellation, Opposer must be deemed to be “engage[d] in retail services that
sell goods of the type produced by” Applicant, Detroit Athletic Co., 128 USPQ2d at
1051, and the Federal Circuit has “held that confusion is likely where one party
engages in retail services that sell goods of the type produced by the other party, as
here.” Id. (citing In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026
(Fed. Cir. 1988) (finding similarity between furniture and “general merchandise store
services,” and rejecting the distinction between goods and services as having “little or
no legal significance.”)). The second DuPont also supports a finding of a likelihood of
confusion in the cancellation.
There are no restrictions on the channels of trade or classes of consumers for the
involved goods identified in Applicant’s application, and the legally identical goods in
Applicant’s application and Opposer’s Registration No. 3631427 “are presumed to
travel in the same channels of trade to the same class of purchasers.” In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir.
2002)). The third DuPont factor strongly supports a finding of a likelihood of confusion
in the opposition.
There are also no restrictions on the channels of trade or classes of consumers for
the involved goods identified in Applicant’s registration. They are “presumed to be
sold in all normal channels to all the normal classes of purchasers.” Detroit Athletic,
128 USPQ2d at 1052. Because those channels include the “retail and mail order
services, featuring, sexually oriented products” identified in Opposer’s Registration
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No. 2040239, the “trade channels for each mark overlap,” id., and the third DuPont
factor also supports a finding of a likelihood of confusion in the cancellation.
3. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider “the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imps., 73 USPQ2d at 1691 (quoting DuPont, 177 USPQ at
567). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014), aff’d mem., 777 F. App’x
516 (Fed. Cir. Sept. 13, 2019).
The proper test regarding similarity “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.” Cai, 127 USPQ2d at 1801 (quoting
Coach Servs., 101 USPQ2d at 1721 (internal quotation marks and citation omitted)).
“The proper perspective on which the analysis must focus is on the recollection of the
average customer, who retains a general rather than specific impression of marks.”
In re i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted).
Because certain of the goods in Applicant’s application and in Opposer’s
Registration No. 3631427 are legally identical, the degree of similarity between the
marks necessary to find a likelihood of confusion in the opposition is reduced. See,
e.g., Viterra, 101 USPQ2d at 1912; Mighty Leaf Tea, 94 USPQ2d at 1260; Century 21
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992).
a. The Parties’ Arguments
Opposer argues that “[w]hen compared in appearance, Opposer’s GOOD
VIBRATIONS mark and Applicant’s SWEET VIBRATIONS mark are similar in that
they both have the same format, structure and syntax; both being comprised of two
words, the first word in each being a short adjective and the second in each being the
identical word VIBRATIONS.” 21 TTABVUE 37. Opposer further argues that
“[a]lthough the words GOOD and SWEET include different letters, they nonetheless
look similar to the extent that both are short four/five letter words, include double
letters as the only vowels (‘OO’ vs. ‘EE’) and function as an adjective modifying the
second term” and that “VIBRATIONS is more substantive and anchoring.” Id.
Opposer concludes that “the similarities in appearance overshadow the differences.”
Id. at 38.
With respect to sound, Opposer argues that “the marks share the same rhythm
and cadence, both having four syllables, the final three of which would be pronounced
the same.” Id. Opposer concedes that “‘good’ and ‘sweet’ sound different,” but argues
that they “only comprise a single syllable of each mark.” Id.
Opposer focuses primarily on the marks’ similarity in meaning. Opposer argues
that “[b]oth marks are formed by pairing an adjective with the identical noun
VIBRATIONS, in the plural form,” and that “the term ‘vibrations’ has a common
recognized meaning of ‘a characteristic emanation, aura, or spirit that infuses or
vitalizes and that can be intuitively sensed or experienced’ or ‘a psychological
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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response especially to aesthetic or emotional stimuli,’” and that the phrase “good
vibrations” has been defined as a “general emotional feeling one has from another
person or a place, situation, etc.’.” Id. (quoting DICTIONARY.COM).
Opposer argues that the “placement of the adjective GOOD before VIBRATIONS
further reinforces the connotation of VIBRATIONS to mean a general, emotional
feeling or atmosphere that is intuitively sensed.” Id. at 39. Citing various dictionary
definitions of the adjective “good,” Opposer argues that “when read in its entirety,
Opposer’s GOOD VIBRATIONS mark conveys a meaning of a positive, pleasant,
favorable, or pleasurable emotional feeling or an atmosphere that is intuitively
sensed or experienced by someone.” Id.
The gist of Opposer’s argument for the marks’ similarity in meaning is that the
“substitution of the term SWEET for GOOD in Applicant’s SWEET VIBRATIONS
mark does not create a meaning or connotation that differs from the meaning and
connotation of Opposer’s GOOD VIBRATIONS mark.” Id. Opposer bases this claim
on multiple dictionary definitions of the adjective “sweet,” and its claim that “good”
and “sweet” are synonyms “[w]hen used in the context of emotional and extrasensory
phenomena.” Id. at 40 n.3. Opposer argues that these meanings of the word “sweet”
cause Applicant’s mark to “convey[ ] the identical meaning of a positive, pleasing,
agreeable or ‘very good’ emotional feeling or atmosphere that is intuitively sensed or
experienced by someone.” Id. at 39-40. Opposer also argues that the marks “are
constructed in the same way,” as “both begin with short adjectives that are
synonymous with pleasing, agreeable and gratifying and end with the identical word
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VIBRATIONS,” and that “to the extent either mark has a dominant portion, it is the
more distinctive shared term VIBRATIONS.” Opposer concludes that “[t]his
significant similarity in the basic format and structure of the two marks, as well as
the shared dominant term VIBRATIONS, simply outweighs the [sic] any minor
differences in the first words of the two marks.” Id.
Applicant responds that “SWEET VIBRATIONS and GOOD VIBRATIONS do not
look the same, do not sound the same, and do not convey the same meaning or
commercial impression.” 22 TTABVUE 11. According to Applicant, “the differing
overall appearance, sound, connotations and commercial impressions of Applicant’s
mark and Opposer’s mark outweigh any similarities between the marks.” Id.
Like Opposer, Applicant focuses primarily on the marks’ connotations and
commercial impressions. Applicant argues that the words GOOD and SWEET in the
marks are their dominant portions because those words are the first terms in the
marks and because the second word VIBRATIONS in the marks is weak and less
significant, 22 TTABVUE 12-13, because it describes a function of vibrators. Id. at
14.
Applicant further argues that the “commercial impression created by SWEET
VIBRATIONS is different than the commercial impression created by GOOD
VIBRATIONS,” id., because the words “good” and “sweet” are not regularly
recognized synonyms, id., and because GOOD VIBRATIONS creates a unique
commercial impression as the title of a song by The Beach Boys. Id. Applicant claims
that “it is difficult to imagine the consumer that would encounter Opposer’s GOOD
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VIBRATIONS mark and not draw an immediate connection to the Beach Boys’ classic
hit.” Id. Applicant argues that its “SWEET VIBRATIONS mark creates no such
association or commercial impression,” id., because the word “sweet” has a different
meaning and different antonyms from the word “good.” Id. Applicant concludes that
“‘[s]weet’ and, correspondingly, ‘SWEET VIBRATIONS,’ is simply not
interchangeable in meaning with ‘good’ or ‘GOOD VIBRATIONS.’” Id.
In its reply brief, Opposer suggests that the marks have no dominant portion
because they are “unitary phrases,” 23 TTABVUE 9, but argues alternatively that if
the marks have dominant elements, they are the shared word VIBRATIONS, not the
words GOOD and SWEET. Id. at 5. According to Opposer, VIBRATIONS is
suggestive, not descriptive, as used in Opposer’s mark, because it “refers to a non-
specific emotional feeling or ‘aura,’” because Opposer “sells a range of goods, such as
dildos and stimulators, that do not vibrate,” and because the words SWEET and
GOOD are neither “a fanciful or arbitrary term” nor otherwise more significant or
source-identifying than VIBRATIONS. Id. at 7.
Opposer’s reply brief also attacks Applicant’s reliance on The Beach Boys’ song
Good Vibrations to fix the meaning of Opposer’s mark. Opposer argues that the “fact
that the phrase ‘Good Vibrations’ may refer to a single creative work by The Beach
Boys in another context has absolutely no bearing on the primary meaning of the
phrase when used in connection with Opposer’s wholly different goods and services.”
Id. at 12. Opposer also claims that Applicant “has failed to provide competent
evidentiary support for its claim that The Beach Boys song is either famous or so
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ubiquitous that consumers of” its goods and services “would immediately think of ‘The
Beach Boys,’ rather than the meaning of the phrase ‘good vibrations’ when they
encounter Opposer’s GOOD VIBRATIONS mark.” Id. As noted above, Opposer argues
that the contents of the articles and other Internet materials on which Applicant
relies are hearsay when offered for their truth. Id. at 13.79 Opposer concludes that
the “Good Vibrations” song by The Beach Boys [sic] wholly
irrelevant to the issues in the instant proceedings and does
not alter or discount Opposer’s showing that the parties’
marks, when viewed in their entireties and in the context
of the parties’ identical and/or highly related goods and
services, have a highly similar meaning and commercial
impression.
Id.
b. Analysis of Similarity
We first address the parties’ disagreement regarding whether the marks have a
dominant portion and, if they do, what it is. 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 1050 (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749,
751 (Fed. Cir. 1985)).

79 Opposer hedges a bit on this position, however, as it cites the contents of two of the articles
to support its claim that the Good Vibrations title did not create “a new primary meaning for
the phrase.” 23 TTABUVE 11-12.
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We agree with Applicant that to the extent that its SWEET VIBRATIONS mark
has a dominant portion, it is the word SWEET, which is the first word in the mark
and modifies the word VIBRATIONS, which has been disclaimed in both its
application and Supplemental Register registration as merely descriptive of a feature
of the goods identified as vibrators. See id. at 1049-50. We find, however, that
Opposer’s mark GOOD VIBRATIONS does not have a dominant portion. Opposer
argues that “the marks in question are unitary phrases,” 23 TTABVUE 9, and as
discussed below, we find that Opposer’s GOOD VIBRATIONS mark is a unitary
phrase that is recognized in the American English vernacular, such that neither
element has more significance than the other in fixing its meaning. We will compare
the marks in their entireties without giving greater or lesser weight to specific
elements in either mark.
With respect to appearance, we are unpersuaded by Opposer’s arguments that the
marks are similar because “both [are] comprised of two words, the first word in each
being a short adjective and the second in each being the identical word
VIBRATIONS,” and because “[a]lthough the words GOOD and SWEET include
different letters, they nonetheless look similar to the extent that both are short
four/five letter words, include double letters as the only vowels (‘OO’ vs. ‘EE’) and
function as an adjective modifying the second term.” 21 TTABVUE 37. The first
argument could also be made with respect to GOOD VIBRATIONS and BAD
VIBRATIONS, which are clearly dissimilar in appearance (and otherwise), and the
second argument could also be made with respect to GOOD VIBRATIONS and
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FLEET VIBRATIONS, which are likewise clearly dissimilar. Although both marks
end in VIBRATIONS, the differences in the lead words GOOD and SWEET make the
SWEET VIBRATIONS mark appear dissimilar to the GOOD VIBRATIONS mark
when the SWEET VIBRATIONS mark is viewed by a consumer familiar with the
GOOD VIBRATIONS mark.
As to sound, we reject Opposer’s argument that GOOD VIBRATIONS and SWEET
VIBRATIONS are similar because each has “four syllables, the final three of which
would be pronounced the same.” Id. at 38. The “final three” syllables in the marks
are, of course, the word VIBRATIONS. As with appearance, there is some similarity
in the marks’ sound because both end in VIBRATIONS, but that similarity is
outweighed by the marks’ dissimilarity in their entireties. Opposer concedes that the
marks’ lead words “‘good’ and ‘sweet’ sound different,” id., and we find that those
differences are sufficient to make the SWEET VIBRATIONS mark sound dissimilar
to the GOOD VIBRATIONS mark when the SWEET VIBRATIONS mark is heard by
a consumer familiar with the GOOD VIBRATIONS mark.
The key issue, to which the parties devote most of their attention, is the similarity
of the marks in meaning. The linchpin of Opposer’s argument is the claimed
similarity of the adjectives “good” and “sweet.” As noted above, Opposer argues that
GOOD and SWEET are synonyms when they modify VIBRATIONS, causing the
marks in their entireties to “convey[ ] the identical meaning of a positive, pleasing,
agreeable or ‘very good’ emotional feeling or atmosphere that is intuitively sensed or
experienced by someone.” 21 TTABVUE 39-40. We disagree.
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“An individual relies on the recollection of the various marks that he or she has
previously seen in the marketplace,” In re Information Builders Inc., 2020 USPQ2d
10444, at *6 (TTAB 2020) (citation omitted), and, as noted above, the average
consumer ordinarily has “a general rather than specific impression of marks.”
i.am.symbolic, 127 USPQ2d at 1630. Here, however, the general impression of
Opposer’s mark GOOD VIBRATIONS is likely to be quite specific because the record
shows that “good vibrations” is a familiar phrase in colloquial American English.
Opposer argues that the word “vibration” has been defined as a “general emotional
feeling one has from another person or a place, situation, etc.’,” 21 TTABVUE 38
(quoting DICTIONARY.COM (giving as an example of the meaning of “vibrations” the
sentence “I usually get good vibrations from him”)), and that “the definitions of record,
including usage examples, illustrate that phrases such as ‘good vibrations’ and ‘good
vibes’ have long been in usage.” 23 TTABVUE 11.80 Opposer also acknowledges that
its mark is identical to the title of The Beach Boys’ song Good Vibrations. Id. at 11-
12. We note in that regard that “the members of this panel independently and
spontaneously viewed the [mark] as reminiscent” of Good Vibrations. In re Preifert
Mfg. Co., 222 USPQ 731, 733 (TTAB 1984) (noting that the panel in that Section
2(e)(1) case had “independently and spontaneously viewed the mark HAY DOLLY as
reminiscent of the famous Broadway hit ‘HELLO DOLLY’”). We have no doubt, based

80 DICTIONARY.COM defines the noun “vibration” as “[m]eaning ‘intuitive signal about a
person or thing’ [that] was popular late 1960s, but has been recorded as far back as 1899.” 14
TTABVUE 17. We take judicial notice that DICTIONARY.COM also defines the phrase “good
vibes,” which is used in Opposer’s domain name goodvibes.com, as “a slang phrase for the
positive feelings given off by a person, place, or situation.” (dictionary.com, last accessed on
June 2, 2020).
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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in part on the evidence regarding the song adduced by Applicant, that many
American consumers, particularly the large cohort of Baby Boomers in the U.S.
population, would also immediately view Opposer’s GOOD VIBRATIONS mark as
reminiscent of the title of The Beach Boys’ song, and that for such consumers the
mark would evoke the song’s music and lyrics. Cf. Harry Winston, 111 USPQ2d at
1428 (materials such as articles and Internet webpages “are frequently competent to
show, on their face, matters of relevance to trademark claims (such as public
perception), regardless of whether the statements [in such materials] are true.”).
As discussed above, the parties dispute the song’s significance on the issue of
similarity of the marks, but even if we accept Opposer’s arguments that its founder
did not adopt its mark to “reference or invoke the song,” 23 TTABVUE 11, and that
“there is no evidence that The Beach Boys coined the phrase ‘Good Vibrations’ or
created a primary meaning for the phrase that did not previously exist,” id., and reject
Applicant’s argument that “it is difficult to imagine the consumer that would
encounter Opposer’s GOOD VIBRATIONS mark and not draw an immediate
connection to the Beach Boys’ classic hit,” 22 TTABVUE 15, the song has probative
value on the issue of how Opposer’s mark would be understood and recalled by
consumers. The song’s lyrics, which include the refrains “I’m pickin’ up good
vibrations, she’s giving me excitations,” “Good good good good vibrations,” and “Gotta
keep those lovin’ good vibrations a happenin’ with her,” 18 TTABVUE 24, use the
phrase “good vibrations” in its colloquial sense to describe a positive “general
emotional feeling one has from another person or a place, situation, etc.’.” 21
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TTABVUE 38. The Good Vibrations title and lyrics thus corroborate what Opposer
acknowledges, that the phrase “good vibrations” has “long been in usage,” 23
TTABVUE 11, and accordingly is familiar to most Americans. Cf. Guantanamera
Cigar Co. v. Corparcion Habanos, S.A., 729 F. Supp. 2d 246, 98 USPQ2d 1078, 1082
(D.D.C. 2010) (in reversing Board decision sustaining opposition to registration of
GUANTANAMERA for cigars on the ground that the mark was primarily
geographically deceptively misdescriptive, the District Court agreed that the Board
had properly found that the history of the 1960s folk song Guantanamera “reinforces
the geographic connection [of the mark] to Guantanamo and Cuba.”). While it is
possible that some consumers of Opposer’s goods may view Opposer’s mark as a
double entendre, we find that because Opposer’s mark consists of the familiar phrase
“good vibrations” and, for many consumers, the title of the song Good Vibrations,
most consumers are likely to recall the mark distinctly and only in its colloquial sense.
Indeed, as Opposer puts it, the “GOOD VIBRATIONS mark conveys a recognized
meaning of a positive, pleasant, favorable, or pleasurable emotional feeling or an
atmosphere that is intuitively sensed or experienced by someone.” 23 TTABVUE 9.
Unlike GOOD VIBRATIONS, Applicant’s mark SWEET VIBRATIONS is not a
familiar phrase with a familiar meaning.81 We thus must determine how it would
likely be understood by purchasers of the goods identified in Applicant’s registration

81 There is no use of “sweet vibrations” comparable to that of “good vibrations” in the multiple
definitions of the word “sweet” in the record. 14 TTABVUE 18-34; 18 TTABVUE 10-12.
Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated)
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and application respectively as “Sex toys,” “vibrators,” and “massagers, vibrators and
stimulators.”
We begin with the word VIBRATIONS that appears in both marks. In the context
of the goods with which Applicant’s mark as a whole is used, the word “VIBRATIONS”
does not have the figurative meaning that it has in Opposer’s mark. Opposer
acknowledges that
[a]s evidenced by the dictionary definitions of record, the
word VIBRATION has multiple meanings that can be
easily segregated into two categories: (1) those pertaining
to physical occurrences, which meanings include “the act of
vibrating”, “the state of being vibrated”, and “the
oscillating, reciprocating, or other periodic motion of a rigid
or elastic body or medium forced from a position or state of
equilibrium” and (2) those pertaining to emotional and
extrasensory phenomena, which meanings include “a
general emotional feeling one has from another person or a
place, situation, etc.” and “a supernatural emanation,
bearing good or fill [sic], that is sensed by or revealed to
those attuned to the occult.”
23 TTABVUE 6.82 As the word VIBRATIONS is used in Applicant’s mark and for
Applicant’s vibrators and other identified goods, its meaning fits squarely into
Opposer’s first category of “pertaining to physical occurrences,” including “the act of
vibrating,” “the state of being vibrated,” and “the oscillating, reciprocating, or other
periodic motion of a rigid or elastic body or medium forced from a position or state of
equilibrium.” That meaning is buttressed by the USPTO’s treatment of the word in
the context of Applicant’s mark.

82 Applicant made of record a definition of “vibrator” as “a device, instrument, mechanism,
attachment, or organ that vibrates or causes vibration or oscillation, such as . . . a vibrating
electrical appliance used in massage or for sexual stimulation . . . .” 18 TTABVUE 14
(MERRIAM-WEBSTER DICTIONARY).
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During prosecution of the application that matured into Applicant’s registration,
Applicant was “required to disclaim ‘VIBRATIONS’ because such wording appears
to be generic in the context of applicant’s goods and/or services,”83 based on dictionary
definitions of the word “vibrations” as “the action of vibrating; the state of being
vibrated or in vibratory motion” such as “(1) oscillation (2): a quivering or trembling
motion.”84 During prosecution of the opposed application, Applicant was similarly
required to disclaim “VIBRATIONS” because “the wording merely describes a feature
of applicant’s goods, namely, that the goods make vibrations” based on a dictionary
definition of “vibrations” as “the act of vibrating.”85
Most of the goods identified in Applicant’s registration and application, and
particularly Applicant’s “vibrators,” use “the action of vibrating” to achieve their
intended purpose, which, in the colorful words of a portion of Applicant’s website
submitted by Opposer, is to “help you find your big ‘O’.” 16 TTABVUE 9.86 As with
Opposer’s mark, it is possible that some consumers of Applicant’s goods may view the
word VIBRATIONS in Applicant’s mark as a double entendre that connotes both “the
action of vibrating” and a “general emotional feeling one has from another person or
a place, situation, etc.,” 21 TTABVUE 38, but we find that it is far more likely that

83 June 28, 2017 Office Action at TSDR 1 (Application Serial No. 87390512).
84 Id. (citing MERRIAM-WEBSTER DICTIONARY (merriam-webster.com)).
85 February 13, 2018 Office Action at TSDR 1 (Application Serial No. 87664722).
86 Mr. Dennis’s declaration shows that at least one third-party’s sex toys are marketed
through use of the word “Vibrations” to describe their “action of vibrating.” Dennis Decl. Ex.
7.2 (“Trojan Vibrations Divine Multi Speed Vibrating Massager,” “Trojan Vibrations Hot Spot
Vibrating Ring,” “Trojan Vibrations Ultra Touch Intense Personal Massager,” “Trojan
Vibrations Vibrating Bullet,” “Trojan Vibrations Vibrating Pulse Intimate Massager,”
“Trojan Vibrations Fingertip Massager”).
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VIBRATIONS would be viewed by most consumers in its literal, not figurative, sense,
as describing a feature of the goods, as the USPTO has twice concluded.
The word SWEET in Applicant’s mark is commonly used in American English,
and has well understood meanings. Cf. Cooper’s, Inc. v. Asahi Kasei Kogyo K.K., 153
USPQ 573, 573 (TTAB 1967) (PAIR KNIT and POWER-KNIT found to be dissimilar
for clothing because “‘PAIR’ and ‘POWER’ are common words in everyday use with
pronunciations and meanings which, according to any dictionary, are materially
different.”). Opposer devotes considerable attention to finding a meaning of “sweet”
that is synonymous with “good,” 21 TTABVUE 39-40, while Applicant counters that
“[n]one of the dictionary definitions for ‘good’ reference the word ‘sweet,’” 22
TTABVUE 14, and that “the word ‘sweet’ is defined as ‘being, inducing, or marked by
the one of the five basic taste sensations that is usually pleasing to the taste and
typically induced by sugars (as sucrose and glucose),” and has as antonyms the words
“sour” or “bitter,” which “contrast[s] with ‘good’ whose antonym is ‘bad.’” Id. at 15.
We agree with Opposer that the taste-related meaning of “sweet” advanced by
Applicant does not apply in the context of Applicant’s goods, as there is no evidence
that they are tasted or ingested. We find, in the context of Applicant’s goods, that the
most applicable of the many definitions of “sweet” in the record is “pleasing to the
senses,” 14 TTABVUE 18 (AMERICAN HERITAGE DICTIONARY),87 in particular, the
sense of touch to which Applicant’s vibrators and other goods are directed. In the

87 The MERRIAM-WEBSTER THESAURUS lists “good” as a synonym of “sweet” in the context of
a subsidiary definition of “sweet” as “giving pleasure or contentment to the mind or senses.”
14 TTABVUE 66.
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context of Applicant’s SWEET VIBRATIONS mark as a whole, the word SWEET
causes the mark to connote the tactile pleasure that Applicant’s website calls the “big
‘O” and that is the desired end result produced by the vibrations of Applicant’s “g-
spot rockin’ vibrators,” 16 TTABVUE 9, and other goods when they are applied to the
erogenous areas of the body.
That is a different and much earthier connotation than the connotation of GOOD
VIBRATIONS as “a positive, pleasing, agreeable or ‘very good’ emotional feeling or
atmosphere that is intuitively sensed or experienced by someone.” 21 TTABVUE 39-
40. The connotation of SWEET VIBRATIONS is tangible and palpable; the
connotation of the familiar expression GOOD VIBRATIONS is abstract and
atmospheric. Simply put, when the two marks are considered in their entireties, they
give off different “vibes.” We find that the marks are different in connotation and
commercial impression.
Because the marks differ in appearance, sound, and connotation and commercial
impression, the first DuPont factor weighs strongly against a finding of a likelihood
of confusion.
4. Conditions of Purchase
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.’” Stone
Lion, 110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). In Stone Lion, the
Federal Circuit recognized that “Board precedent requires the decision to be based
‘on the least sophisticated potential purchasers.’” Id. at 1163 (quoting Gen. Mills, 100
USPQ2d at 1600).
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Applicant admits that its goods “are typically purchased by ordinary consumers
exercising no more than ordinary care,” 16 TTABVUE 17 (Applicant’s Response to
Opposer’s Request to Admit No. 10), but Opposer goes further and argues that “adult
toys and sexual aids are often impulse purchases,” and that “[b]ecause adult toys and
sexual aids are inexpensive impulse items and consumers do not exercise a high
degree of care in their purchasing decisions, the conditions of purchase weigh in favor
of finding a likelihood of confusion.” 21 TTABVUE 36.
The record does not show that adult toys and sexual aids are typically impulse
purchase items due to their low cost or otherwise. Mr. Dennis acknowledged as much
when he testified that “the typical consumer” of the involved goods and services “is a
member of the general public who possesses no specialized knowledge or expertise
with regard to retail services featuring adult toys and sexual aids and who exercises
no more than ordinary care in making their purchases.” Dennis Decl. ¶ 25. He further
testified, without elaboration, that “adult toys and sexual aids are often impulse
purchases,” Dennis Decl. ¶ 25, and stated that “[a]dult toys and sexual aids can be
bought by the general public online or off the shelf via retail and mass merchandisers
(including CVS, Walmart and Amazon.com) under conditions in which consumers will
not take great care in making their purchase,” Dennis Decl. ¶ 26, and that “[a]dult
toys and sexual aids are typically priced at retail anywhere from under $10 to more
than $25 per items.” Dennis Decl. ¶ 27; Exs. 7.1-7.3.
The record shows that the prices for the goods identified in Opposer’s registrations
and Applicant’s registration and application vary significantly. Applicant’s website
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offers sex toys from as low as $12 to as high as $170, Dennis Decl. Exs. 3.1-3.2, and
the goods range in price from as low as $6.95 to as high as $219.99 on third-party
websites, Dennis Decl. Exs. 5.2-5.3, 7.1, and from as low as $8.99 to as high as $238.99
on retailer websites. Dennis Decl. Exs. 7.2-7.3.
Because the involved identifications of goods are not limited to any particular
price points, we must assume that they include low-priced goods, but low prices per
se are not determinative of whether goods are impulse purchase items. “[T]he
significance of the price of applicant’s products must be weighed against other factors
such as the type of product . . . .” Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d
1734, 1744 (TTAB 2014) (finding that low prices of dietary supplements “do not
necessarily imply a low degree of consumer care in the selection of [the goods] where
the prospective consumers would be expected to exercise a reasonable degree of care
regarding the products that they ingest to improve their health.”). See Recot, 54
USPQ2d at 1898 (“When products are relatively low-priced and subject to impulse
buying, the risk of likelihood of confusion is increased because purchasers of such
products are held to a lesser standard of purchasing care.”) (emphasis added); cf.
Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana, Inc., 98 USPQ2d
1921, 1933 (TTAB 2011) (“ice cream bars and fruit bars are inexpensive products and
by their very nature, are impulse purchase items.”).
Vibrators and similar products are personal items used by consumers for the
sexual stimulation of their private parts.88 Opposer’s website states that its

88 The intimate nature of the goods is illustrated by pages on both Opposer’s and Applicant’s
websites. One page on Opposer’s site advertises the $129 Moxie vibrator by We-Vibe as
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“Customer Service Representatives are highly trained and very knowledgeable about
the products we carry” and that “we can help you select the products that are right
for you.” Dennis Decl. Ex. 3.3. The website also displays multiple reviews by
consumers who took the time to discuss their personal experiences with Applicant’s
products, Dennis Decl. Exs. 4.1, 5.1, and promotes a $16 Bliss Bullet vibrator as
having “an easy to use dial control that allows you to customize your sensational
experience from ‘mmm’ mild to ‘wow’ wild!” and as being “[p]erfect for first time vibe
users and aficionados alike . . . .” Dennis Decl. Ex. 4.1. Contrary to Mr. Dennis’s
conclusory testimony, Dennis Decl. ¶ 25, this evidence strongly suggests that even
the least sophisticated purchasers of the goods, such as the “first time vibe users”
mentioned on Opposer’s website, would not typically buy them “impulsively or
carelessly, as would be the case of a child purchasing candy or a toy.” Inter IKEA Sys.,
110 USPQ2d at 1744 (quoting Stouffer Corp. v. Health Valley Natural Foods, Inc., 1
USPQ2d 1900, 1902 (TTAB 1986)). We find that the typical purchaser of the involved
goods is likely to exercise ordinary care, and that the fourth DuPont factor is neutral
in our analysis of a likelihood of confusion.

follows: “Enjoy sexy and discreet vibrations anywhere you like with this wearable, Bluetooth-
controlled vibrator. Slender and contoured, Moxie slips easily and comfortably under your
clothes.” Dennis Decl. Ex. 3.1. Another page promoting Opposer’s vibrators and pulsators
states that “[v]ibrators are a fantastic way to explore your sexuality, either through solo play
or with a partner.” Dennis Decl. Ex. 3.2. Applicant’s home page states that “Sweet Vibrations
is an adult boutique that delivers innovative intimate lifestyle products that give its
customers a moment [or moments] of complete sexual bliss.” 16 TTABVUE 5.
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5. Absence of Evidence of Actual Confusion
The eighth DuPont factor is “the length of time during and conditions under which
there has been concurrent use without evidence of actual confusion.” Guild Mortg.,
129 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). Applicant’s argument on
this factor is notable for its brevity: “The record contains no evidence of actual
confusion between Opposer’s GOOD VIBRATIONS mark and Applicant’s SWEET
VIBRATIONS mark.” 22 TTABVUE 15. Opposer argues that there has been
insufficient opportunity for actual confusion to have occurred because “in the short
two-year period in which Applicant’s mark has allegedly been in use, sales under the
mark have been minimal.” 21 TTABVUE 41. We agree. “In the absence of a significant
opportunity for actual confusion to have occurred, the absence of actual confusion is
of little probative value in this case.” Barbara’s Bakery, Inc. v. Landesman, 82
USPQ2d 1283, 1287 (TTAB 2007). The absence of evidence of actual confusion is due
at least in part “to the minimal scope of applicant’s actual use of [its] mark in the
marketplace.” Id. We find that the eighth DuPont factor is neutral in our analysis of
the likelihood of confusion.
6. Balancing the DuPont Factors
The first DuPont factor weighs strongly against a finding of a likelihood of
confusion. The second and third DuPont factors strongly support a finding of a
likelihood of confusion in the opposition and also support such a finding in the
cancellation, and under the fifth DuPont factor, Opposer’s GOOD VIBRATIONS
mark is entitled to somewhat more than the normal scope of protection to which an
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inherently distinctive mark is entitled. The fourth and eighth DuPont factors are
neutral.
Any of the DuPont factors may play a dominant role. DuPont, 177 USPQ at 567.
In fact, in some cases, a single factor, particularly the first factor, may be dispositive.
Pack’em Enters., 21 USPQ2d at 1144-45. We find that the marks are sufficiently
dissimilar in meaning and commercial impression that confusion is unlikely even
taking into account the reduced degree of similarity required for confusion to be likely
in the opposition, and we conclude that the first DuPont factor is so pivotal as to
outweigh the other factors discussed above in our analysis of the likelihood of
confusion in both proceedings. In re Medline Indus., Inc., 2020 USPQ2d 10237, at *13
(TTAB 2020) (citing Champagne Loius Roederer S.A. v. Delicato Vineyards, 148 F.3d
1373, 47 USPQ2d 1459, 1460 (Fed. Cir. 1998); and Pack’em Enters. 21 USPQ2d at
1144-45). Accordingly, we find that Opposer did not prove, by a preponderance of the
evidence in either proceeding, that confusion is likely.
Decision: The Notice of Opposition in Opposition No. 91241053 is dismissed and
the Petition for Cancellation in Cancellation No. 92068505 is denied.