C.D. S.R.L.

Trademark Trial and Appeal Board

Jun 29, 2021

88048404 (T.T.A.B. Jun. 29, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: June 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re C.D. S.R.L.
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Serial No. 88048404
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John J. O’Malley of Volpe and Koenig, PC,
for C.D. S.R.L.
Galina Gurok, Trademark Examining Attorney, Law Office 126,
Andrew Lawrence, Managing Attorney.
_____

Before Taylor, Coggins and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, C.D. S.R.L., applied to register the composite mark G GERARD’S
COSMETIC CULTURE in the following format, (“COSMETIC”
disclaimed), on the Principal Register for “cosmetic products, in particular creams,
lotions, emulsions, oils, masks, mousses and gels for the care and hydration of the
skin of the face and body; sun and after sun creams for the face and body; gels, lotions,
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milk and emulsions for skin cleansing,” in International Class 3 (“the Application”).1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the registered
standard character mark GERARD COSMETICS (“COSMETICS” disclaimed) on the
Supplemental Register for “cosmetic creams; cosmetic creams for skin care;
cosmetics; cosmetics and cosmetic preparations; cosmetics and make-up; cosmetics,
namely, compacts; eyebrow cosmetics,” in International Class 3 (“the Registration”).2
When the refusal was made final, Applicant filed an appeal to this Board.
The appeal is fully briefed. We affirm the refusal.
I. Applicable Law
The fundamental purpose of Trademark Act Section 2(d) is to prevent confusion
as to source, and to protect registrants from damage caused by registration of marks
likely to cause confusion. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,
224 USPQ 327, 331 (1985). Our analysis is based on all of the probative evidence of
record. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) (setting forth factors to be considered, hereinafter referred
to as “DuPont factors”). In making our determination, we consider each DuPont factor
for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,

1 Application Serial No. 88048404 was filed on July 23, 2018 under Section 44(e) of the
Trademark Act, 15 U.S.C. § 1126(e), on the basis of European Union Registration
No. 017622952. According to the application: “The mark consists of a stylized ‘G’ above the
word ‘Gerard’s’, which is italicized, is [sic] above block lettering ‘COSMETIC CULTURE’.”
Color is not claimed as a feature.
2 Reg. No. 4753477, issued June 9, 2015; Section 8 declaration received.
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129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). 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) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”).
A. The Similarity or Dissimilarity of the Goods and Channels of
Trade

We begin with the second DuPont factor, which considers the “similarity or
dissimilarity and nature of the goods … described in an application or registration,”
and the third DuPont factor, which considers the “similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Our
determinations under these factors are based on the goods identified in the
application and cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014).
Registrant’s broad identification of “cosmetics” in the Registration fully encompasses
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Applicant’s specifically enumerated “cosmetic products, in particular creams, lotions,
emulsions, oils, masks, mousses and gels for the care and hydration of the skin of the face
and body; sun and after sun creams for the face and body; gels, lotions, milk and
emulsions for skin cleansing.” The goods are therefore legally identical.
Applicant’s unsupported argument that its “products are sold primarily through
salons and spas,” whereas “Registrant’s products are sold through specialty cosmetic
shops or through Registrant’s ‘exclusive’ online store,” is unavailing.3 Where, as here, the
goods are legally identical, we presume that the channels of trade and classes of
purchasers for those goods are also the same. See In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding
channels of trade and classes of consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion); In re Yawata Iron & Steel Co., 403
F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods or
services, the channels of trade and classes of purchasers are considered to be the same);
Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101
USPQ2d 1022, 1028 (TTAB 2011).
The second and third DuPont factors weigh heavily in favor of finding likelihood of
confusion.

3 16 TTABVUE 13 (Applicant’s Brief). Neither Applicant’s nor Registrant’s identification
includes any restrictions as to trade channels or classes of purchasers. Accordingly
Applicant’s reliance on statements made by Registrant during prosecution of its application
to limit Registrant’s trade channels is misplaced. Apart from the fact that statements in an
application are not evidence on behalf of an applicant unless proven, see Omega SA v.
Compucorp, 229 USPQ 191, 192 n. 5 (TTAB 1985), an applicant may not restrict the trade
channels by extrinsic evidence. New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596,
*15-16 (TTAB 2020) (Board may not “resort to the use of extrinsic evidence to restrict the
channels of trade).
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B. The Strength of the Registered Mark

Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” DuPont, 177 USPQ at 567. As the Federal Circuit has
stated, “evidence of third-party use of similar marks on similar goods ‘can show that
customers have been educated to distinguish between different marks on the basis of
minute distinctions.’” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA
v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015) (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d
1671, 1674 (Fed. Cir. 2015)).
Applicant asserts that “the term ‘GERARD’ is weak.”4 However, Applicant did not
provide any evidence regarding the use or registration of similar third-party marks
for similar goods. Instead, Applicant’s relies on a statement made by Registrant
during prosecution of its underlying application, which was initially refused based on
six prior registrations (one identifying cosmetics, among other goods, the others
identifying, inter alia, salon services) that:
[T]here eight current registrations or pending applications with the
word “Gerard” within Class 3 and Class 44. Further the word “Gerard”
appears a total of 109 times in the USPTO database. The shared word
“Gerard” has been diluted within the Applicant’s applied for class and
the classes of the Cited Marks. The individual word “Gerard” does not
provide a strong source identifying function because of this dilution and
the consuming public is forced to look to the additional distinctive
matter, even when disclaimed, to find the source.5

Based on the foregoing, Applicant argues that “the differences in those marks are

4 Id. at 11.
5 May 9, 2019 Response to Office Action, TSDR 23-24.
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commensurate with the differences between Applicant’s Mark and the Cited
Registration” and “the Trademark Office has already determined that confusion is
not likely between the Cited Registration and the marks cited in [that office action].”6
“Manifestly,” Applicant concludes, “there is no basis for finding confusion with respect
to Applicant’s Mark.”7
The Examining Attorney argues that Applicant’s evidence amounts to nothing
more than “a list of registrations for services that are different from the goods in this
case,” which does not make them of record.8 Furthermore, she asserts, “applicant’s
list of third party registrations was from an Office action response filed in 2014 and
many of the registrations are now expired or cancelled,” and “[c]ancelled or expired
third-party registrations have no probative value other than as evidence that the
registrations were issued.”9
We agree with the Examining Attorney that—to the extent Registrant’s office
action response arguing against a likelihood of confusion refusal based on six cited
registrations could be considered a listing of registrations—they are not evidence of
record in this case and we give them no consideration. The Board has long held that
the mere listing of registrations is not sufficient to make the registrations of record
and the Board does not take judicial notice of third-party registrations. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1208.02 (2021) and

6 16 TTABVUE 11 (Applicant’s Brief).
7 Id.
8 18 TTABVUE 9-10 (Examining Attorney’s Brief).
9 Id. at 10.
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cases cited therein, including In re Compania de Licores Internacionales S.A., 102
USPQ2d 1841, 1843 (TTAB 2012) (mere listing of third-party registrations in brief
insufficient to make them of record). We need not address the Examining Attorney’s
separate contention that “many of the registrations are now expired or cancelled”; the
registrations are not of record, so their status is irrelevant. Consequently, Applicant
proffered no evidence establishing that the term GERARD is weak when used on or
in connection with cosmetics.
We acknowledge that the cited mark is registered on the Supplemental Register
and thus we recognize some inherent weakness in the mark. In re Bush Bros. & Co.,
884 F.2d 569, 12 USPQ2d 1058, 1059 n.2 (Fed. Cir. 1989) (“Registration on the
Supplemental Register is not evidence of ownership, validity, or the exclusive right
to use.”). Nonetheless, even weak marks are entitled to protection against confusion.
See Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974)
(“Confusion is confusion. The likelihood thereof is to be avoided, as much between
'weak' marks as between 'strong' marks, or as between a 'weak' and a strong' mark.”).
The sixth DuPont factor is neutral.
C. The Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athl. Co., 903 F.3d 1297, 128 USPQ2d 1047. 1051 (Fed. Cir. 2018)
(quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be
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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 Fed. App’x. 516 (Fed. Cir. 2019).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but whether their overall commercial impressions are so similar that
confusion as to the source of the goods offered under the respective marks is likely to
result. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir.
2018) (citing Coach Servs., Inc. v. Triumph Learning LLC, 688 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012). Our focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of service
marks. See Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688
(CCPA 1969) (many consumers “may have but dim recollections from having
previously seen or heard one or the other of the involved marks.”); Inter IKEA Sys.
B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014).
Although marks must be considered in their entireties, one feature of a mark may
be more significant than another, and it is not improper to give more weight to this
dominant feature in determining the similarity of the marks. In re Viterra 101
USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985) (“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. Indeed, this type of
analysis appears to be unavoidable.”).
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In comparing the marks, we are mindful that where the goods are identical, as
they are here, the degree of similarity necessary to find likelihood of confusion
declines. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).
As an initial matter, we note that the wording GERARD’S COSMETIC CULTURE
in Applicant’s mark virtually encompasses the wording in Registrant’s mark
GERARD COSMETICS, except for the possessive use of the name “Gerard” in
Applicant’s mark, and the pluralization of “cosmetics” in Registrant’s Mark. The
name GERARD in Applicant’s mark is clearly dominant, since it is the largest and
most prominent part of the mark, and its stylization further emphasizes the name.
In Registrant’s mark, GERARD is also the dominant element because it is followed
by the descriptive and disclaimed term COSMETICS. See Nat’l Data Corp., 224
USPQ at 752 (“a descriptive component of a mark may be given little weight in
reaching a conclusion on the likelihood of confusion”); In re Code Consultants, Inc.,
60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”).
Marks have frequently been found to be similar where one mark incorporates the
entirety of another mark, as is the case here. See, e.g., Coca-Cola Bottling Co. of
Memphis, Tenn., Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ
105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water
and ginger ale likely to cause confusion with BENGAL for gin); In re Mr. Recipe, LLC,
118 USPQ2d 1084, 1090 (TTAB 2016) (finding JAWS DEVOUR YOUR HUNGER and
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JAWS confusingly similar); In re S. Bend Toy Mfg. Co., Inc., 218 USPQ 479, 480
(TTAB 1983) (finding LIL’ LADY BUG for toy doll carriages and LITTLE LADY for
doll clothing confusingly similar).
The apostrophe-S in Applicant’s mark, and the pluralization of cosmetics in
Registrant’s mark, have little, if any, trademark significance and do not otherwise
affect the overall similarity of the marks in terms of commercial impression. See e.g.,
See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (finding no
material difference between the singular and plural forms of ZOMBIE such that the
marks were considered the same mark); In re Strategic Partners, Inc., 102 USPQ2d
1397, 1399 (TTAB 2012) (“the difference between the singular form ANYWEAR
depicted in the applied-for mark and the plural form ANYWEARS in applicant's
existing registration is not meaningful.”); In re Binion, 93 USPQ2d 1531, 1534 (TTAB
2009) (noting that “[t]he absence of the possessive form in applicant’s mark … has
little, if any, significance for consumers in distinguishing it from the cited mark”); In
re Curtice-Burns, Inc., 231 USPQ 990, 992 (TTAB 1986) (finding the marks
McKENZIE’S and McKENZIE “virtually identical in commercial impression”).
We must also account for the fact that Registrant’s GERARD COSMETICS mark
is in standard characters. As such, its display is not limited to any special stylization,
and we must assume that it could be displayed in a similar or even the same font
style as Applicant’s mark. See Trademark Rule 2.52(a), 37 C.F.R.
§ 2.52(a) (“Standard character” marks are registered “without claim to any particular
Serial No. 88048404
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font style, size, or color.”); In re Viterra Inc., 101 USPQ2d at 1908 (holding that the
specific font style of a mark cannot serve as the basis to distinguish it from a mark in
standard character form); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186
(TTAB 2018) (“[T]he rights associated with a standard character mark reside in the
wording per se and not in any particular font style, size, or color.”). Accordingly, the
marks are not distinguished by differences in how the literal elements are displayed.
Although Applicant’s mark also contains what is described in the application as a
stylized letter “G, as the Examining Attorney notes, the “has the appearance of a
design element rather than wording.”10 When evaluating a composite mark consisting
of words and a design, the word portion is normally accorded greater weight because
it is likely to make a greater impression upon purchasers, be remembered by them,
and be used by them to refer to or request the goods. In re Viterra, 101 USPQ2d at
1911 (“the literal component of brand names likely will appear alone when used in
text and will be spoken when requested by consumers”); Joel Gott Wines, LLC v.
Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (“In the case of marks
consisting of words and a design, the words are normally given greater weight
because they would be used by consumers to request the products.”). Even if the
element is interpreted by consumers as representing the letter “G,” it serves to
emphasize the first letter in the name GERARD that is common to both marks.
Applicant argues that “it is important to highlight that the [sic] both marks end

10 18 TTABVUE 8 (Examining Attorney’s Brief).
Serial No. 88048404
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in different words – ‘CULTURE’ and ‘COSMETICS’ — which alone create an overall
commercial impression that is markedly distinct.”11 We are not persuaded. While the
difference between the terms “COSMETIC CULTURE” and “COSMETICS” is
something to be considered, in that COSMETICS in the former term is used as an
adjective to modify the word CULTURE, whereas it is used as a noun in the latter,
that fact remains that both terms refer to cosmetics.
The Examining Attorney contends that the word CULTURE in Applicant’s mark
“creates the impression of a new product line from the same source” or, alternatively,
that “consumers may understand that applicant’s mark conveys the idea of the
culture of registrant’s cosmetics brand.”12 Regardless, the minor nuance comprising
the difference between the terms COSMETIC CULTURE and COSMETICS in the
marks do not detract from their similar overall commercial impressions. This is
particularly so given the dominance of the name GERARD in both marks, and “the
penchant of consumers to shorten marks,” 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”)).
While we have considered the likelihoood of confusion cases cited by Applicant
concerning this factor, 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

11 16 TTABVUE 7-8 (Applicant’s Brief).
12 18 TTABVUE 10 (Examining Attorney’s Brief).
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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). It is well settled that each case must be decided on its own
facts and the Board is not bound by prior decisions involving different records. See In
re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566; In re Datapipe, Inc., 111
USPQ2d 1330, 1336 (TTAB 2014).
Viewing the marks in their entireties, as we must, we find them highly similar in
appearance, sound, connotation and commercial impression. The first DuPont factor
weighs strongly in favor of finding likelihood of confusion.
D. Purchasing Conditions

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). Circumstances suggesting care in
purchasing may tend to minimize the likelihood of confusion between similar marks. See,
e.g., In re N.A.D., Inc., 754 F.2d 996, 224 USPQ 969, 971 (Fed. Cir. 1985) (concluding
that, because only sophisticated purchasers exercising great care would purchase the
relevant goods, there would be no likelihood of confusion merely because of the similarity
between the marks NARCO and NARKOMED). However, the fact that purchasers are
sophisticated or knowledgeable in a particular field does not mean they are immune to
source confusion. See In re Shell Oil Co., 26 USPQ2d at 1690 (“even sophisticated
purchasers can be confused by very similar marks”). Board precedent requires our
decision to be based “on the least sophisticated potential purchasers.” Stone Lion, 110
USPQ2d at 1163 (Fed. Cir. 2014) (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A.,
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100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d
1679 (TTAB 2014).
Applicant contends that “[t]here are thousands of brands in the cosmetics industry,
and this inundation of brand names results in consumers conditioned to use heightened
discretion when choosing a product, especially higher end products. Cosmetic customers
are therefore discriminatory when faced with such choices and will be sure to choose the
brand they initially intended.”13 Moreover, asserts Applicant without evidence, “cosmetic
brands place strong emphasis on their entire brand name through marketing and
promotion, further strengthening each mark’s importance to the relevant consumer.”14
However, neither Applicant’s cosmetics nor Registrant’s cosmetics are restricted
to high end products, and both parties’ cosmetics will be available to all purchasers
interested in cosmetics. Because the cosmetics described in the Application and
Registration are ordinary consumer products and have no limitations as to their type
or price point, and may be relatively inexpensive and purchased by the public at large,
we must assume the purchasers of both Applicant’s and Registrant’s cosmetics
include casual consumers purchasing relatively inexpensive items that may be
subject to impulse purchasing. See, e.g., L’Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1441 (TTAB 2012); In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986).
Thus, 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

13 16 TTABVUE 12 (Applicant’s Brief).
14 Id.
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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, 110 USPQ2d at
1163. In the absence of any evidence relating to the degree of care purchasers
exercise, the strong similarity of the marks and legal identity of the goods outweigh
any purchaser sophistication or care. See HRL Assocs., Inc. v. Weiss Assocs., Inc., 12
USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir.
1990) (similarities of goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods). Even if Applicant had provided evidence
of consumer sophistication, it would not necessarily prevent a likelihood of confusion
because “[h]uman memories even of discriminating purchasers ... are not infallible.”
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406, 58
C.C.P.A. 751, 168 USPQ 110, 112 (CCPA 1970).
The fourth DuPont factor weighs in favor of finding likelihood of confusion.
II. Conclusion
Having considered all evidence and arguments bearing on the relevant DuPont
factors, we conclude that Applicant’s mark for various cosmetic
goods is likely to cause confusion with Registrant’s GERARD COSMETICS mark for
various cosmetic goods, including “cosmetics.” We conclude so principally due to the
close similarity of the marks, identical in part goods, and overlapping trade channels
and purchasing conditions, which outweigh any weakness of the registered mark.
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Decision: The refusal to register under Section 2(d) is affirmed.