CBH International, LLC

Trademark Trial and Appeal Board

Jun 7, 2021

88141696 (T.T.A.B. Jun. 7, 2021)

This Opinion is not a
Precedent of the TTAB
Mailed: June 7, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re CBH International, LLC
_____

Serial No. 88141696
_____

Daniel H. Bliss of Howard & Howard Attorneys PLLC
for CBH International, LLC.

J. Evan Mucha, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Cataldo, Bergsman, and Goodman,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, CBH International, LLC, seeks registration on the Principal Register
of the mark UNCLE BUD’S HEMP HEALTHY PRODUCTS (in standard characters,
“HEMP” and “PRODUCTS” disclaimed), identifying the following goods, as amended:
Non-medicated skincare lotions and creams, all of the foregoing
excluding essential oils; non-medicated skin moisturizers, skin lotions,
skin creams, skin serums, and skin washes; all of the foregoing
excluding essential oils and containing hemp with less than 0.3% THC
on a dry weight basis or CBD derived solely from industrial hemp with
no more than 0.3% THC on a dry weight basis in International Class 3;
and

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Topical pain relief preparations, all of the foregoing excluding essential
oils and which contain hemp with less than 0.3% THC on a dry weight
basis in International Class 5.1

The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark UNCLE BUD’S (in standard
characters) identifying the following goods:
Air fragrancing preparations; Aromatic essential oils; Aromatic oils;
Aromatic oils for the bath; Essential oils; Essential oils for
aromatherapy use; Essential oils for household use; Essential oils for
personal use; Incense; Incense sticks; Natural essential oils; Oils for
perfumes and scents; Perfume oils; Pre-scented strips and cards for
sampling fragrances; Reed diffusers comprised of scented oils and also
including reeds and a diffuser container; Reeds and scented oils sold as
a unit for use in room scent diffusers; Scented fabric refresher spray;
Scented oils; Scented oils used to produce aromas when heated; Scented
room sprays in International Class 3.2

In addition, the Examining Attorney refused registration as to the goods in
International Class 5 on the ground that Applicant does not have a bona fide intent
to use the mark in lawful commerce under Sections 1 and 45 of the Trademark Act,

1 Application Serial No. 88141696, based on Applicant’s assertion of a bona fide intent to use
the mark in commerce under Section 1(b) of the Trademark Act. 15 U.S.C. § 1051(b), with an
amended filing date of December 20, 2018. Applicant amended its filing date to the effective
date of the 2018 amendments to the Agricultural Marketing Act of 1946 as provided in
Examination Guide 1-19 Examination of Marks for Cannabis and Cannabis-Related Goods
and Services after Enactment of the 2018 Farm Bill.

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

2 Registration No. 4997820 issued on the Principal Register on July 12, 2016.
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15 U.S.C. §§1051 and 1127, because the goods are not in compliance with the Federal
Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. §§321(g)(1), 331(d) and 355(a).3
After the Examining Attorney made the refusals final, Applicant appealed to this
Board.4 We affirm the refusal to register under Section 2(d).
I. Evidentiary Matter
Before proceeding to the merits of the refusal, we address evidentiary matters.
A. Evidence Submitted with Denial of Request for Reconsideration
In its brief, Applicant argues that the evidence submitted by the Examining
Attorney with his denial of the Request for Reconsideration is untimely.
On July 30, 2020, Counsel for Applicant filed a Response for request for
reconsideration of the Final Rejection and a Notice of Appeal on August
7, 2020. The Examining Attorney denied the request for reconsideration
on August 29, 2020 and returned the application to the Trademark Trial
and Appeal Board. In the denial for request for reconsideration, the
Examining Attorney submitted exhibits that were not made of record
during examination and are untimely. See T.B.M.P. § 1207.01. Applicant
respectfully objects to such exhibits submitted after the Notice of Appeal
and requests that these exhibits be stricken and not considered.5

However, we agree with the Examining Attorney that “[w]hen a timely request for
reconsideration of an appealed action is filed (with or without new evidence), the
examining attorney may submit, with his or her response to the request, new

3 We presume that Applicant and the Examining Attorney are familiar with the prosecution
history of the involved application and their arguments directed toward the issues on appeal,
and repeat them in this decision only as necessary.
4 In a paralegal order issued on March 5, 2021, (16 TTABVUE) the Board accepted Applicant’s
substitute reply brief, filed February 10, 2021. (13 TTABVUE.) Accordingly, Applicant’s
original reply brief, filed January 11, 2021, (11 TTABVUE) will be given no consideration.
5 Applicant’s brief, 8 TTABVUE 5.
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evidence directed to the issue(s) for which reconsideration is sought.”6 Trademark
Trial and Appeal Board Manual of Procedure (TBMP) § 1207.04 (June 2020), citing
In re Davey Products Pty Ltd., 92 USPQ2d 1198, 1201 (TTAB 2009) (evidence
submitted in response to request for reconsideration that is filed with notice of appeal
is part of the application record); see also In re Giger, 78 USPQ 1405, 1406-07 (TTAB
2006). Accordingly, we will consider the evidence properly introduced into the record
by the Examining Attorney with his August 29, 2020 denial of Applicant’s Request
for Reconsideration.
B. Evidence Submitted With Applicant’s Reply Brief
With its February 10, 2021 reply brief, Applicant submitted a proposed
amendment to its identification of Class 5 services, along with evidence in the form
of an “opinion letter” in support of its argument that “Applicant does have FDA
approval for the amended goods” in Class 5.7 Applicant also submitted with its reply
brief a hyperlink to a dictionary definition of “essential oils” in support of its
arguments against the Section 2(d) refusal.8 In an interlocutory order issued on
February 23, 2021, the Board construed the proposed amendment as a request for
reconsideration and remanded the application to the Examining Attorney for
consideration of the proposed amendment to the Class 5 goods.9 In his March 5, 2021
denial of Applicant’s construed Request for Reconsideration, the Examining Attorney

6 Examining Attorney’s brief, 10 TTABVUE 6.
7 Applicant’s reply brief, 13 TTABVUE 3, 9-10.
8 13 TTABVUE 3, 5-6.
9 14 TTABVUE.
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accepted the amendment to the Class 5 goods as set forth above, and argued that the
“opinion letter” is untimely under 37 C.F.R. § 2.142(d) because it was submitted
during appeal and that the hyperlink to the dictionary definition is insufficient to
make the definition properly of record.10
However, as noted above, the Board construed the proposed amendment in
Applicant’s reply brief as a request for reconsideration and remanded the application
to the Examining Attorney. Thus, the Examining Attorney had the opportunity to
consider the “opinion letter” submitted with the reply brief and submit arguments
and evidence addressing it in his March 5, 2021 denial. We will accordingly consider
the letter to be properly made of record.
With regard to the hyperlink to the dictionary definition of “essential oils,” the
Board has made clear that providing hyperlinks to Internet materials is insufficient
to make such materials of record. See In re Olin Corp., 124 USPQ2d 1327, 1332 n.15
(TTAB 2017) (“Applicant did cite to an Internet link, here and at several other places
in its brief. This is improper. Because the information displayed at a link’s Internet
address can be changed or deleted, merely providing a link to a website is insufficient
to make information from that site of record.”); In re HSB Solomon Assocs., LLC,
102 USPQ2d 1269, 1274 (TTAB 2012) (stating that “a reference to a website’s internet
address is not sufficient to make the content of that website or any pages from that
website of record.”); Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031, 1039
(TTAB 2010) (noting that because of the transitory nature of Internet postings,

10 March 5, 2021 denial of construed Request for Reconsideration at 2.
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websites referenced only by links may later be modified or deleted). Accordingly,
Applicant’s proposed dictionary definition is not properly made of record and will not
be considered. Nonetheless, to the extent necessary to determine the Section 2(d)
refusal, we take judicial notice of the definition of “essential oil” submitted with
Applicant’s reply brief.11
We turn now to the merits of this appeal.
II. Refusal under Section 2(d)

We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor that is relevant, and have treated other
factors as neutral. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”));
ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)

11 Retrieved from merriam-webster.com on June 7, 2021. The Board may take judicial notice
of dictionary definitions, including online dictionaries that exist in printed format, definitions
in technical dictionaries, translation dictionaries and online dictionaries, and we elect to do
so here. See, e.g., In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014).
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(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play
more or less weighty roles in any particular determination”). Two key considerations
are the similarities between the marks and the relatedness of the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
A. The Goods and their Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
In support of his contention that the goods are related, the Examining Attorney
introduced into the record pages from nine third-party websites for entities providing
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goods under the same marks, trade names or company names that include goods of
the kind identified in the involved application and cited registration:12
 doTerra offers essential oils, hand lotions containing essential oils and
skin care preparations (Office action dated February 7, 2020, TSDR p.
45-52);

 Earth’s Care offers essential oils, skin care products and topical pain
relieving ointments (Office action dated February 7, 2020, TSDR p. 53-
56);

 Nature’s Fusions offers hemp-based pain relief cream, facial skincare oil
containing hemp and essential oils (Office action dated August 29, 2020,
TSDR p. 21-33);

 Eden’s Garden offers cannabis-based roll-on analgesics, cannabis-based
skincare and body oils and essential oils (Office action dated August 29,
2020, TSDR p. 34-37);

 Avon offers CBD-based skincare body cream, hemp skincare oil and
essential oils (Office action dated August 29, 2020, TSDR p. 60-68);

 Beyond Scents offers CBD and hemp-based moisturizing body creams,
topical pain relief gel, skin moisturizers and lotions, perfumes and
essential oils (Office action dated August 29, 2020, TSDR p. 69-73);

 Scents by the Bay offers CBD-based skin care products, CBD-based pain
management products and essential oils (Office action dated August 29,
2020, TSDR p. 106-110);

 Soul Purpose offers CBD-based skin care moisturizers and lotions, CBD-
based muscle pain relief cream, perfume oils and fragrances (Office
action dated August 29, 2020, TSDR p. 111-138); and

 Therapia by Aroma offers hemp skin moisturizer, essential oils and air
fragrancing preparations (Office action dated August 29, 2020, TSDR p.
139-151).

12 See Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both parties,
if presented, is relevant to the relatedness analysis”).
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The Examining Attorney also submitted printouts of nine use-based, third-party
registrations that include goods of the type identified in the involved application and
cited registration.13 These goods include various skin creams, lotions and
moisturizers, topical analgesic preparations and essential oils. As a general
proposition, although use-based, third-party registrations alone are not evidence that
the marks shown therein are in use or that the public is familiar with them, they
nonetheless may have some probative value to the extent they may serve to suggest
that the goods at issue are of a kind that emanate from a single source. See In re I-
Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018); In re Infinity Broad. Corp.,
60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993);
Applicant argues:
The nature of Applicant’s goods is very different from the nature of
registrant’s goods of the ‘820 mark because the nature of Applicant’s
goods are restricted to non-medicated skincare, and pain relief
containing hemp, but excluding essential oils, and the nature of
registrant’s goods of the ‘820 mark is restricted to air fragrancing and
essential oils. Contrary to the Examining Attorney, the goods are not
closely related because essential oils are excluded and not used in
Applicant’s topical pain relief preparations. As such, the nature of
Applicant’s goods is different from the nature of registrant’s goods.14

13 Office Action dated February 7, 2020, TSDR 14-16, 23-25, 42-44; Office Action dated July
22, 2019, TSDR 11-16, 27-30, 38-40; Office Action dated August 29, 2020, TSDR 9-11, 15-17.
14 8 TTABVUE 12-13. Emphasis supplied by Applicant.
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Applicant essentially argues that its amendment to the identification of goods to
exclude essential oils obviates any likelihood of confusion by rendering Applicant’s
and Registrant’s goods dissimilar.
Applicant’s argument reflects a misunderstanding of the second DuPont factor
analysis. The language “all of the foregoing excluding essential oils” in both classes
of Applicant’s goods is not binding on consumers when they encounter Applicant’s
mark. See In re i.am.symbolic, llc, 116 USPQ2d 1406, 1410 (TTAB 2015), aff’d, 866
F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). Cf. M2 Software Inc. v. M2
Communications Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (based on
restrictions to specific industries in both of the identifications of goods in Opposer’s
registration and Applicant’s application, the goods are unrelated and travel in
different trade channels to different purchasers) (emphasis added). Purchasers are
unlikely to know of the assertion in a registration issued to Applicant that Applicant’s
goods are limited to those excluding essential oils. Accordingly, although the subject
application’s identification of Class 3 and Class 5 goods specifically excludes certain
of the goods identified in the cited registration, this will not prevent confusion
because consumers will not be aware of the existence of this exclusionary language
in the application.
We are not concerned that “[b]ecause of the restrictions in the identifications of
both Applicant’s goods and registrant’s goods, these goods could not encompass each
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other or overlap.”15 It is not necessary for the goods at issue to overlap or otherwise
encompass each other. The question is whether the goods are sufficiently related such
that, if identified by related marks, consumers will believe that the products emanate
from a single source. As defined, “essential oils” are “any of a class of volatile oils that
give plants their characteristic odors and are used especially in perfumes and
flavorings, and for aromatherapy.”16 However, the evidence discussed above
demonstrates that essential oils are also used in various skincare products and
offered for sale by producers of skincare products. The evidence of record thus
establishes that these goods are related and may emanate from a common source.
The exclusionary language adopted by Applicant is insufficient to traverse a finding
that the goods are related.
We recognize that consumers may be able to distinguish Applicant’s goods from
the goods in the cited registration; however, that is not the standard. See, e.g., Hydra
Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the
confusion found to be likely is not as to the products but as to their source”) (citation
omitted); In re Anderson, 101 USPQ2d at 1919. The respective goods need only be
“related in some manner and/or if the circumstances surrounding their marketing
[be] such that they could give rise to the mistaken belief that [the goods and/or
services] emanate from the same source.” Coach Servs. Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc.

15 8 TTABVUE 13.
16 Merriam-webster.com.
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v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v.
America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d
at 1161 (quoting DuPont, 177 USPQ at 567). We are not persuaded by Applicant’s
conclusory statement that because its goods differ from the goods identified by the
registered mark, the goods are marketed to different consumers through different
trade channels. Applicant argues that primarily due to the exclusionary language in
its identification of Class 3 and Class 5 goods, they move in different channels of trade
from those in which the goods in the cited registration will be encountered and will
be sought by different consumers. However, because there are no limitations as to
channels of trade or classes of purchasers in the recitation of goods in the involved
application or the cited registration, we must presume that the identified goods move
in all channels of trade normal for such goods and are available to all potential classes
of ordinary consumers thereof. See Citigroup Inc. v. Capital City Bank Grp. Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs LLC,
80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
It is the identifications of goods that controls, not what unsupported argument or
even, if it was present, extrinsic evidence may show about the specific nature of the
goods as provided in the marketplace. Stone Lion Capital v. Lion Capital, 110
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USPQ2d at 1162; In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165
(TTAB 2013); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986).
As noted above, the Examining Attorney has introduced evidence that the goods
offered under the involved mark and cited mark are offered for sale on the same
webpages of several third parties. This evidence supports a finding that these goods
are offered in at least one common channel of trade, that is, the websites operated by
these entities and, where applicable, their corresponding physical locations.
Finally, based on the evidence discussed above, we have no reason not to believe
that ordinary consumers who purchase non-medicated skincare lotions and creams
or topical pain relief preparations would not also purchase air fragrancing
preparations or essential oils. Thus, the same consumers could purchase the products
at issue.
Based upon the foregoing, we find that Applicant’s goods are related to the goods
identified in the cited registration and that such goods may be encountered in the
same channels of trade by the same classes of consumers. The second and third
DuPont factors weigh in favor of finding a likelihood of confusion.
B. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s UNCLE BUD’S HEMP HEALTHY PRODUCTS mark and the registered
UNCLE BUD’S mark in their entireties, taking into account their appearance, sound,
connotation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion
Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot
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Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-
Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968)
(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”) (citation omitted). In re Inn at St. John’s, LLC, 126 USPQ2d 1742,
1746 (TTAB 2018).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs., 101 USPQ2d at 1721 (internal quotation marks
omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016).
Consumers may not necessarily encounter the marks in close proximity and must
rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d
1467, 1468 (TTAB 1988). And, as discussed above, the average purchasers who are
likely to encounter both marks are ordinary consumers.
Applicant’s applied-for UNCLE BUD’S HEMP HEALTHY PRODUCTS mark
adopts the wording of the registered mark UNCLE BUD’S in its entirety, adding the
following term “HEMP HEALTHY PRODUCTS.” “Marks have frequently been found
to be similar where one mark incorporates the entirety of another mark, as is the case
here.” Coca-Cola Bottling Co. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
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USPQ 105, 106 (CCPA 1975) (BENGAL is similar to BENGAL LANCER); Johnson
Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY is similar to
EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ 479, 480 (TTAB 1983) (LIL’
LADY BUG is similar to LITTLE LADY).
Both marks appear in standard characters and therefore we must consider
presentations of those marks regardless of font style, size or color in determining their
similarity or dissimilarity. Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d
1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (the Board should use the DuPont
factors to determine whether there is a likelihood of confusion between the depictions
of standard character marks and not restrict the analysis to “reasonable manners” of
depicting standard character marks); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1910 (Fed. Cir. 2012).
We find that the term UNCLE BUD’S in Applicant’s UNCLE BUD’S HEMP
HEALTHY PRODUCTS mark is the most distinctive portion thereof. The disclaimed
terms HEMP and PRODUCTS appear, at best, to describe a feature or characteristic
of Applicant’s goods. The phrase HEMP HEALTHY PRODUCTS suggests products
made of or with hemp that are healthful. Applicant argues:
Further, the term “HEALTHY” does not describe a characteristic of the
goods, but is suggestive of the goods. Therefore, the additional wording
“HEMP HEALTHY PRODUCTS” is not conceptually weaker than the
shared wording “UNCLE BUD’S” in the mark and, when the marks are
viewed in their entirety, the marks do not create the same commercial
impression nor do they render the wording “UNCLE BUD’S” the more
dominant element of the mark.17

17 8 TTABVUE 11.
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However, Applicant does not further explain how HEMP HEALTHY PRODUCTS,
strongly suggesting healthy products made with hemp, is as conceptually strong as
UNCLE BUD’S, which has no descriptive or suggestive meaning of record in relation
to the goods. While UNCLE BUD’S may be a tangential reference to goods made with
hemp or cannabis, the term is conceptually much stronger than HEMP HEALTHY
PRODUCTS, which at best strongly suggests healthful products made from hemp.
Accordingly, we have no basis to find that UNCLE BUD’S is not the dominant and
most distinctive portion of Applicant’s mark.
Furthermore, we note that UNCLE BUD’S, the term comprising the registered
mark and the most distinctive portion of Applicant’s mark, is also the first term
thereof. Presto Products, Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB
1988) (“[it is] a matter of some importance since it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and remembered.”).
See also Palm Bay Imp., 73 USPQ2d at 1692 (“The presence of this strong distinctive
term as the first word in both parties’ marks renders the marks similar, especially in
light of the largely laudatory (and hence non-source identifying) significance of
ROYALE.”).
We acknowledge that the presence of HEMP HEALTHY PRODUCTS as the
following term in Applicant’s mark differentiates it visually and aurally from the
registered mark. This point of distinction, however, does not significantly diminish
the strong similarities in connotation and overall commercial impression engendered
by these two marks. Based upon the above analysis, we find that UNCLE BUD’S
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HEMP HEALTHY PRODUCTS is more similar than dissimilar to the UNCLE BUD’S
mark in terms of appearance, sound, connotation, and commercial impression. As a
result, consumers encountering UNCLE BUD’S and UNCLE BUD’S HEMP
HEALTHY PRODUCTS could mistakenly believe the latter is a variation on the
registered mark used to identify a particular line of products made with hemp, but
nonetheless emanating from a common source. See In re Bay State Brewing Co.,
117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor Dev. Corp., 588 F.2d 811 ,
200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (“the users of language have
a universal habit of shortening full names—from haste or laziness or just economy of
words”)).
For these reasons, we find that the marks are similar. The first DuPont factor
thus also weighs in favor of finding a likelihood of confusion.
C. Consumer Sophistication
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant asserts that
The purchasers in the air fragrancing and cosmetics industries are
careful, sophisticated purchasers of the goods/services. They are not the
average purchaser of such goods/services. The purchasers are
consumers that are experienced, knowledgeable purchasers with respect
to the type of air fragrancing and cosmetics that they want to purchase
and use. As previously submitted into evidence, purchasers are
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sophisticated enough to know whether they are buying air fragrancing
and essential oils or skincare products containing hemp or CBD.18

However, both Applicant’s goods and the goods identified in the cited registration
are not restricted by trade channel and will be available to all purchasers interested
in these goods. While some purchasers may be discriminating and exercise care in
their selection, others may not exercise as great a degree of care. The mere fact that
purchasers may be able to distinguish between the products is immaterial. As noted
above, the issue is confusion as to the source of the products, and the standard of care
is that of the least sophisticated potential purchaser. Stone Lion Capital v. Lion
Capital, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222
(TTAB 2018) (“Board precedent requires our decision to be based on the least
sophisticated potential purchasers.”)).
In the absence of any evidence relating to the degree of care purchasers exercise,
the similarity of the marks and relatedness of the goods outweigh Applicant’s
assertion that purchasers are sophisticated or careful in their purchases. See HRL
Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, Weiss
Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990)
(similarities of goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods). Moreover, were we to accord a level of
sophistication to the purchasers of the goods at issue, even sophisticated purchasers
are not immune from source confusion. See In re Research Trading Corp., 793 F.2d

18 8 TTABVUE 18.
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1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman
& Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories
even of discriminating purchasers...are not infallible.”)).
The fourth DuPont factor is neutral.
D. Applicant’s Prior Registration
In its application, Applicant claims ownership of Reg. No. 5305026 for the mark
displayed below,
identifying “Topical analgesics; Analgesic balm;
Topical gel for medical and therapeutic treatment of minor aches and pains of muscles
and joints; all of the foregoing containing CBD derived from industrial hemp” in
International Class 5.19
Applicant argues:

19 Issued on October 10, 2017 with a disclaimer of “ORIGINAL” and “TOPICAL PAIN
RELIEVER” and “FAMILY FORMULA” and the following description of the mark: The mark
consists of a hexagon design with the stylized literal element “UNCLE BUD’S” within a
slightly curved banner in the center of the hexagon. At the top of the hexagon is the literal
element “NATURE’S ORIGINAL” with an illustration of a beaker with two leaves inside
between “NATURE’S” and “ORIGINAL”. Below that is the stylized literal element “MADE
WITH CANATREX”. Below the “UNCLE BUD’S” banner is the literal element “TOPICAL
PAIN RELIEVER” with a circle on each side of the phrase. That is above the depiction of a
cross and the stylized literal element “A TRUSTED FAMILY FORMULA”. Color is not
claimed as a feature of the mark.
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This mark was registered in light of the [cited] ‘820 mark and is similar
to the current Applicant’s mark of UNCLE BUD’S HEMP HEALTHY
PRODUCTS. Both the registered goods and the current Applicant’s
goods contain CBD derived from industrial hemp. Therefore, it is
respectfully submitted that the current mark should be registrable
similar to the registered mark in light of the ‘820 mark.20

However, the mark in Applicant’s prior registration is far less similar to the cited
registered mark UNCLE BUD’S than the mark in Applicant’s involved application.
In addition, the mark in Applicant’s prior registration is not substantially similar to
Applicant’s applied-for mark. Thus, the circumstances in this case are unlike those
in In re Strategic Partners, Inc., 102 USPQ2d 1397 (TTAB 2012), where the Board
reversed a refusal to register the mark ANYWEAR in stylized form for “footwear,”
finding no likelihood of confusion with the registered mark ANYWEAR BY JOSIE
NATORI and design, for “jackets, shirts, pants, stretch T-tops and stoles” due to the
“unusual situation” created by the applicant’s ownership of a registration for “a
substantially similar mark for the identical goods,” and also that the “applicant’s
registration and the cited registration have coexisted for over five years.” Strategic
Partners, 102 USPQ2d at 1399. In that case, the thirteenth DuPont factor, which
“relates to ‘any other established fact probative of the effect of use,’” compelled the
Board to determine that this factor outweighed the others and confusion was
unlikely. Strategic Partners, 102 USPQ2d at 1399-1400 (quoting DuPont, 177 USPQ
at 567).

20 8 TTABVUE 22.
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The facts of this case are more similar to those presented in Inn at St. John’s, 126
USPQ2d at 1748 (finding that applicant’s earlier registration of a partially similar
mark was a neutral factor in the §2(d) analysis, because the applied-for mark was
more similar to the cited registered mark than applicant’s previously registered
mark); and In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793
(TTAB 2017) (distinguishing Strategic Partners and finding that the 3½-year
coexistence of applicant’s prior registration and the cited registration was a relevant
consideration but did not outweigh the other relevant DuPont factors). In the present
case, the marks in Applicant’s prior registration and involved application are not
substantially similar, and the goods identified thereby, while related, are not
identical. We thus find the coexistence of Applicant’s prior registration and the cited
registration since 2017 does not overcome the similarities discussed above between
the marks, goods and channels of trade.
The thirteenth DuPont factor is neutral.
E. Court Decisions Involving Different Marks
Finally, Applicant cites to decisions from various circuit courts involving
likelihood of confusion between marks and goods or services that are dissimilar from
the marks and goods at issue herein. We are not privy to the facts or records of these
decisions and are not bound by court determinations involving these disparate marks,
goods and services. “It has been said many times that each case must be decided on
its own facts.” In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (internal
citation omitted); see also In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564,
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1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics
similar to Nett Designs’ application, the PTO’s allowance of such prior registrations
does not bind the Board or this court.”).
While we have considered the likelihoood of confusion cases cited by Applicant, we
do not find the nature of their comparison of the marks applicable here. We do not
agree that the other cases offer helpful guidance in our analysis “because the critical
facts of different cases almost always differ substantially,” as they do here. In re Gen.
Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1027 (TTAB 2017).
F. Summary of Likelihood of Confusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that consumers familiar with Registrant’s
goods offered under its UNCLE BUD’S mark would be likely to believe, upon
encountering Applicant’s UNCLE BUD’S HEMP HEALTHY PRODUCTS mark, that
the goods originated with or are associated with or sponsored by the same entity.
Decision: The refusal to register Applicant’s mark on both classes of goods is
affirmed under Section 2(d) of the Trademark Act.
Accordingly, we need not and do not reach the refusal of registration based upon
Sections 1 and 45 of the Trademark Act.21

21 “Like the federal courts, the Board has generally used its discretion to decide only those
claims necessary to enter judgment and dispose of the case. . . [T]he Board’s determination
of registrability does not require, in every instance, decision on every pleaded claim.”
Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013).
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