91245601 (T.T.A.B. Jan. 29, 2021)

Farmec S.A.v.SanMedica IP Holdings, LLC

Trademark Trial and Appeal BoardJan 29, 2021

91245601 (T.T.A.B. Jan. 29, 2021)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: January 29, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Farmec S.A. v. SanMedica IP Holdings, LLC _____ Opposition No. 91245601 _____ P. Jay Hines of Muncy, Geissler, Olds & Lowe, P.C. for Farmec S.A. David R. Parker of Price Parkinson & Kerr PLLC, for SanMedica IP Holdings, LLC _____ Before Mermelstein, Lynch, and Lebow, Administrative Trademark Judges. Opinion by Lebow, Administrative Trademark Judge: Applicant, SanMedica IP Holdings, LLC, applied to register the standard character mark SEROVITAL for “cosmetics” in International Class 3.1 Opposer, Farmec S.A., has opposed registration of Applicant’s mark, alleging prior 1 Application Serial No. 88118198 was filed on September 14, 2018 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging a first date of use anywhere and in commerce of July 15, 2014. Opposition No. 91245601 - 2 - use and registration of the marks shown below, on the ground that registration of Applicant’s mark for the identified goods is likely to cause confusion with Opposer’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d): PROF. DR. A ASLAN GEROVITAL H3 (stylized) for “cosmetics, namely, face and body cream, greasy cream, half-greasy cream, body emulsion, body lotion, cleansing milk, face lotion, moisturizing cream, contour eye cream, face mask, hand cream,” in International Class 3;2 GEROVITAL (standard characters) for “bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices,” in International Class 3;3 and (words and design) for “cosmetics; cosmetic creams; cosmetic preparations for skin care; cosmetic dyes; cosmetic preparations for slimming purposes; lotions for cosmetic purposes; almond milk for cosmetic purposes; adhesives for cosmetic purposes; cosmetic preparations for baths; cosmetic preparations for eyelashes; cosmetic kits; cosmetic pencils; cleansing milk for toilet purposes; douching preparations for personal sanitary or deodorant purposes; tissues impregnated, with cosmetic lotions; tissues impregnated with make-up removing preparations; balms other than for medical purposes; oils for cosmetic purposes; greases for cosmetic purposes; pomades for cosmetic purposes; astringents for cosmetic purposes; petroleum jelly for cosmetic purposes; smoothing preparations for cosmetic purposes; soaps; medicated soap; shaving soap; disinfectant soap; cakes of toilet soap; antiperspirant soap; deodorant soaps; bath salts, not for medical purposes; bath preparations, not for medical purposes; almond soap; sun-tanning preparations; sunscreen preparations; shaving preparations; shaving stones as astringents; after-shave lotions; deodorants for human beings; antiperspirants; perfumery; perfumes; eau de cologne; toilet water; scented water; non-medicated toiletries; talcum powder, for toilet use; oils for toilet purposes; shampoos; hair lotions; hair dyes; hair colorants; hair waving preparations; hair sprays; hair conditioners; hair straightening preparations; neutralizers for permanent waving; hydrogen peroxide for cosmetic purposes; cotton 2 Registration No. 3113496, registered July 11, 2006; renewed. 3 Registration No. 4834035, registered August 4, 2015. Opposition No. 91245601 - 3 - swabs for cosmetic purposes; cotton sticks for cosmetic purposes; cotton wool for cosmetic purposes; pumice stones for personal use; alum stones as astringents; make-up preparations; make-up; mascara; make-up powder; make-up removing preparations; lip glosses; lipsticks; eyebrow cosmetics; eyebrow pencils; adhesives for affixing false eyelashes; beauty masks; skin whitening creams; essential oils; nail care preparations; nail varnish; nail polish; depilatory preparations; depilatories; depilatory wax; moustache wax; massage gels other than for medical purposes; dentifrices; dental bleaching gels; denture polishes; mouthwashes, not for medical purposes; preparations for cleaning dentures; breath freshening sprays; breath freshening strips,” in International Class 3.4 Applicant, in its answer, denied the salient allegations of the notice of opposition.5 The case is fully briefed. For the reasons set forth below, we sustain the opposition. I. The Record The record consists of the pleadings, the file of the opposed application pursuant to Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following submissions by the parties:  Opposer’s Testimony and Evidence: Notice of Reliance (or “NOR”) consisting of copies of registration certificates for Opposer’s relied-upon registrations;6 pages from Opposer’s website;7 pages from Opposer’s website and two third-party websites featuring Opposer’s marks and goods;8 4 Registration No. 5084242, registered September 6, 2016. 5 Applicant also asserted several purported affirmative defenses: failure to state a claim upon which relief may be granted; good faith, and lack of standing. Failure to state a claim upon which relief may be granted is not an affirmative defense. John W. Carson Found. v. Toilets.com, Inc., 94 USPQ2d 1942, 1949 (TTAB 2010). Lack of standing is also not an affirmative defense. Standing, which we now refer to as entitlement to a statutory cause of action (see note 19 infra), is an element of Opposer’s asserted claims that Opposer must prove as part of its case. See Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982); Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1637 (TTAB 2011). We construe Applicant’s claim of “good faith,” also not an affirmative defense, as an amplification of its denials of the salient allegations in the notice of opposition. 6 10 TTABVUE (Opposer’s NOR, Exhibits 1-3). 7 11-13 TTABVUE (Opposer’s NOR, Exhibit 4 – Parts 1-3). 8 14-16 TTABVUE (Opposer’s NOR, Exhibits 5-7). Opposition No. 91245601 - 4 - Applicant’s admissions to Opposer’s requests for admissions numbers 1-3;9 and the testimony declaration of Iona Turdean, Opposer’s Head of the Export Department.10  Applicant’s Testimony and Evidence: NOR consisting of a copy of Registration No. 4339758 in the name of Applicant;11 copies of pages from Applicant’s website;12 pages from Amazon.com for searches of GEROVITAL and SEROVITAL;13 pages from third-party websites showing product packaging for GEROVITAL;14 dictionary definition of the terms “gero-, “sero-,” “vital” and “vitals”;15 printouts of USPTO TESS database searches for GERO-formative marks, and VITAL-formative marks in Class 3;16 copies of thirty third-party registration certificates;17 and the testimony declaration of Bodee Gay, Applicant’s CEO.18 9 17 TTABVUE (Opposer’s NOR, Exhibit 8). 10 18 TTABVUE (Opposer’s NOR, Exhibit 9). 11 19 TTABVUE 10-11 (Applicant’s NOR, Exhibit 1). 12 Id. at 12-39 (Exhibit 2). 13 Id. at 40-50 (Exhibit 3), 55-65 (Exhibit 6). 14 Id. at 51-54 (Exhibits 4-5). 15 Id. at 66-73, 88-96 (Exhibit 7-8, 12). 16 Id. at 74-78, 84-87 (Exhibits 9, 11). 17 Id. at 79-83, 95-148 (Exhibits 10, 13-38). 18 Id. at 185-188 (Exhibit 41). In addition to the above-noted testimony and evidence, Applicant seeks to rely on (1) “sales data incorporating the proposed SEROVITAL mark,” submitted under seal, which Applicant purportedly produced in response to Opposer’s discovery requests, 19 TTABVUE 7-8, 21 TTABVUE (Exhibit 39); and (2) invoices ostensibly showing sales of Opposer’s products, 19 TTABVUE 148-184 (Exhibit 40), which were purportedly produced by Opposer in response to Applicant’s discovery requests. However, the categories of materials that may be submitted under a notice of reliance are limited, consisting only of: an adverse party’s discovery deposition, answer to an interrogatory, or admission to a request for admission, Trademark Rule 2.120(k)(3)(i), 37 C.F.R. § 2.2120(k)(3)(i); printed publications and official records, Trademark Rule 2.122(e), 37 C.F.R. § 2.122(e). See also Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1955 (TTAB 2008) (listing limited categories of materials which may be submitted under notice of reliance); Hiraga v. Arena, 90 USPQ2d 1102, 1105 (TTAB 2009) (a party generally may not submit his own responses to discovery requests under a notice of reliance). Accordingly, we have not considered that evidence. Opposition No. 91245601 - 5 - II. Entitlement to a Statutory Cause of Action19 Entitlement to a statutory cause of action is a threshold issue in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)). A party in the position of plaintiff may oppose registration of a mark when such opposition is within the zone of interests protected by Section 13 of the Trademark Act, and the party’s reasonable belief in damage is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-7 (Fed. Cir. 2020). Opposer introduced copies of its pleaded registrations and offered testimony that Opposer is the current legal owner of those registrations, which are valid and subsisting.20 This is sufficient to establish Opposer’s entitlement to a statutory cause of action under the statute.21 See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 19 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 13 and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). 20 10 TTABVUE (Opposer’s NOR, Exhibits 1-3), 18 TTABVUE (Opposer’s NOR, Exhibit 9, Testimony Declaration of Ionna Turdean (Opposer’s Head of the Export Department). 21 Opposer, in its NOR, states that the pleaded registrations submitted show “the current status and title of each registration” and that they are “[s]tatus and title copies.” 19 TTABVUE 2. However, they are plain copies that were not accompanied by copies of information from USPTO electronic database records showing their current status and title, which, if provided, would have made them admissible without authenticating testimony. See Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). Applicant does not challenge Opposer’s entitlement to a statutory cause of action. Opposition No. 91245601 - 6 - USPQ2d 1842, 1844 (Fed. Cir. 2000); Primrose Ret. Communities, LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016) (entitlement to a statutory cause of action established based on pleaded registration made of record). III. Applicable Law Trademark Act Section 2(d), 15 U.S.C. § 1052(d), 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. To prevail on its Section 2(d) claim, Opposer must prove by a preponderance of the evidence that Applicant’s use of its mark is likely to cause confusion, mistake, or deception as to the source or sponsorship of the goods and services identified in the application. Cunningham, 55 USPQ2d at 1844 (plaintiff must prove priority and likelihood of confusion by a preponderance of the evidence); Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (same). 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”). 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, 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 Opposition No. 91245601 - 7 - 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 and services. 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.”). Because Opposer’s pleaded registrations are of record and Applicant has not counterclaimed to cancel them, priority is not at issue with respect to the marks and goods identified in those 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)). We focus our analysis on Opposer’s pleaded Registration No. 4834035 for the mark GEROVITAL in standard characters (“the Registration”) for, inter alia, “cosmetics,” which is most similar to Applicants’ mark and identifies in part identical goods. If we do not find confusion likely between that registered mark and Applicants’ mark, we would also not find confusion likely between Opposer’s other registered marks and Applicants’ mark. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. Similarity or Dissimilarity of the Goods We begin our analysis with the second DuPont factor, which considers the “similarity or dissimilarity and nature of the goods or services as described in an Opposition No. 91245601 - 8 - application or registration.” DuPont, 177 USPQ at 567. Applicant’s identification of goods is comprised of cosmetics, and Opposer’s identification of goods is comprised of goods that include cosmetics. The parties’ goods are thus legally identical in part.22 The second DuPont factor weighs strongly in favor of finding a likelihood of confusion. B. Similarity or Dissimilarity of Trade Channels We turn next to the third DuPont factor, which considers the “similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Because the goods identified in an application or registration are presumed to travel in all usual channels of trade and to all usual customers for goods of the type identified, In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), we must also presume that Applicant’s and Registrant’s legally identical goods, which have no limitations or restrictions, move in the same channels of trade to the same classes of customers. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 1550 (2019) (“The TTAB properly followed our case law and presume[d] that the identical goods move in the same channels of trade and are available to the same classes of customers for such goods” (internal quotations omitted); See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even in the absence of evidence regarding channels of trade and classes of consumers, the Board may rely on this legal presumption in determining likelihood of confusion). 22 Applicant does not challenge the relatedness of the goods. Opposition No. 91245601 - 9 - Nonetheless, Applicant argues that “there is no overlap in the channels of trade used to sell the products at issue” because “[t]he only website where both Opposer’s GEROVITAL-branded products are sold is the ubiquitous website Amazon.”23 “Contrary to Applicant’s [unsupported] assertions, the Board may not read limitations into Opposer’s unrestricted registration or Applicant’s application, nor may the Board resort to the use of extrinsic evidence to restrict the channels of trade.” New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, *47 (TTAB 2020) (citing SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983)). The third DuPont factor weighs strongly in favor of finding a likelihood of confusion. C. 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 Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting DuPont, 177 USPQ at 567). Applicant argues that “consumers of cosmetic products are sophisticated … and are not likely to be confused as to source of the products at issue.” Specifically, Applicant argues that “[t]he price point for SEROVITAL-branded cosmetic products is very high for cosmetics products,” whereas “GEROVITAL branded cosmetic products are relatively expensive, but far less expensive than SEROVITAL branded 23 23 TTABVUE 26 (Applicant’s Brief). Opposition No. 91245601 - 10 - cosmetic products—typically about one fourth of the price.”24 In addition, Applicant urges that “the [Board] has emphasized in the past that because cosmetic products are used on a person’s face and body, consumers are sophisticated and discerning about the cosmetic products they purchase and the source of those products.”25 In this regard, Applicant points to Faberge, Inc. v. Dr. Babor GmbH & Co., 219 USPQ 848 (TTAB 1983), where the Board found no likelihood of confusion between the marks BABE and Design and BABOR and Design for cosmetic products. Applicant highlights the following statement by the Board in that case: “[W]e believe that most purchasers of cosmetics, which are to be used for cleanliness and the enhancement of one’s appearance, are aware of the products in this line which they prefer and the companies from which those products emanate.” Id. at 851. Opposer, for its part, does not dispute Applicant’s contention that the parties goods are offered at differing price points, but emphasizes that “even sophisticated consumers are not immune to trademark confusion, especially when the marks are similar and the [goods] are in part legally identical.”26 Applicant provides no evidence to support its allegation that consumers of cosmetics are sophisticated. Our determination is based on the goods as they are identified in the application and cited registration, respectively, not on any extrinsic evidence of actual use. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 24 Id. at 24-25. Applicant provided printouts of pages from Amazon.com listing various cosmetic products offered for sale under the parties’ respective marks. 25 Id. at 25. 26 24 TTABVUE 7 (Opposer’s Reply Brief). Opposition No. 91245601 - 11 - 1749 (Fed. Cir. 2017); Stone Lion, 110 USPQ2d at 1162. Because the cosmetics described in the application 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 include casual consumers purchasing relatively inexpensive items. See, e.g., In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986). Additionally, Board precedent requires our decision to be based “on the least sophisticated potential purchasers” in the relevant class of customers. Stone Lion, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014)). Further, with regard to Applicant’s reliance on Faberge, more recently, the Board noted in In re FabFitFun, Inc., 127 USPQ2d 1670, 1673 (TTAB 2018), that “[i]n the absence of any limitations suggesting otherwise, we find that the cosmetics at issue include lower cost make-up items that may be purchased without a high degree of care.” And in Faberge, the Board made it clear that “each case depends on its particular fact situation for its determination” in finding that “purchasers of cosmetic products would have no difficulty in distinguishing between the well-known, easily recognized word ‘BABE’ and applicant’s unfamiliar ‘BABOR.’ Faberge, 219 USPQ at 851. We do not consider either party’s mark in this case to be in the same category as BABE in terms of being a “well-known, easily recognized word.” Moreover, it is well-settled that even sophisticated consumers are not immune from source confusion, especially in cases like this one involving similar marks and Opposition No. 91245601 - 12 - identical in part goods. See In re Shell Oil Co., 26 USPQ2d at 1690 (“even sophisticated purchasers can be confused by very similar marks”); In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“Human memories even of discriminating purchasers … are not infallible. Sophistication of buyers and purchaser care are relevant considerations, but are not controlling on this factual record.”) (internal citations and quotations omitted). Based on the foregoing, we find the fourth DuPont factor neutral. D. Purported Strength of Opposer’s Mark; Alleged Weakness of the Shared Term “VITAL” We turn next to the fifth DuPont factor, which considers the “fame” or strength of the prior mark, DuPont, 177 USPQ at 567, in order to evaluate the scope of protection to which Registrant’s mark is entitled. In determining the strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). In order to determine the conceptual strength of the cited mark, we evaluate its intrinsic nature, that is, where it lies along the generic-descriptive-suggestive- arbitrary-fanciful continuum of words. In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987). Accord Two Pesos Inc. v. Taco Cabana Inc., 505 U.S. 763, 23 USPQ2d 1081, 1083 (1992) (“Marks are often classified in categories of generally increasing distinctiveness ... (1) generic; (2) Opposition No. 91245601 - 13 - descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.”). In assessing the conceptual strength of a mark, we may consider dictionary definitions “to determine the ordinary significance and meanings of words.” Hancock v. Am. Steel & Wire Co. of N.J., 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953). 1. Opposer’s Argument Opposer does not discuss the conceptual strength of its GEROVITAL mark apart from its conclusory statement that it is conceptually strong.27 With respect to commercial strength, Opposer argues that the mark is strong because Opposer is the award-winning leader in the field of cosmetics market in Romania. Opposer’s modern history began in 1967 when it became the first manufacturer of Gerovital H3 Prof. Ana Aslan creams and emulsions. Opposer’s GEROVITAL mark and name is commercially strong as Opposer began exporting its cosmetics goods to the United States in January of 1981. Today the company has a portfolio of over 400 cosmetic products and exports to 26 countries. Opposer offers its GEROVITAL cosmetic goods under the GEROVITAL Marks through various channels typical for such products. This includes goods sold directly to consumers from its website … as well as through Amazon … and through third party websites… Accordingly, Opposer’s GEROVITAL marks are strong and warrant broad protection.28 Commercial strength may be measured indirectly by the volume of sales and advertising expenditures in connection with the goods, and supported by other indicia such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the goods identified by the marks; and the general reputation of the goods. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1354 27 24 TTABVUE 6 (Opposer’s Reply Brief). 28 20 TTABVUE 12 (Opposer’s Brief) (citations omitted). Opposition No. 91245601 - 14 - (TTAB 2014); Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate proof of strength). Other relevant factors include “market share, brand awareness, licensing activities, and variety of goods bearing the mark.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012). In this regard, Opposer’s evidence is thin and does little to establish commercial strength. Although Opposer’s witness, Ioana Turdeen (Opposer’s head of export), testified that Opposer is an award-winning leader in the cosmetics market in Romania,29 that evidence, even if true, does not speak to the issue of the mark’s strength in the United States. Nor does her testimony that “[Opposer] today has a portfolio of over 400 cosmetic products and exports to 26 countries,”30 since we do not know which products are exported to the United States, the volume of sales of Opposer’s products in the United States, or the amount of Opposer’s related advertising expenditures. See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596 at *32 (TTAB 2020) (“Because Opposer failed to break down sales and expenditures for the United States alone, the probative value of this evidence to prove commercial strength or fame is diminished”); Cf. Double J of Broward Inc. v. Skalony Sportswear GmbH, 21 USPQ2d 1609, 1612-13 (TTAB 1991) (information concerning applicant’s foreign activities is not relevant to the issues in an opposition proceeding); Johnson & Johnson v. Salve S.A., 183 USPQ 375, 376 (TTAB 1974) (since foreign 29 18 TTABVUE 4 (Opposer’s NOR, Exhibit 9). 30 Id. Opposition No. 91245601 - 15 - trademark use creates no rights in the United States, any information or evidence pertaining to foreign use is thus immaterial to a party’s right to register its mark in the United States). Opposer points to pages from its website it made of record in support, but they are barely legible and contain various self-serving statements, none of which relate specifically to the sale of Opposer’s goods in the United States. The fact that Opposer has been selling its GEROVITAL cosmetic products in the United States since 1981 is somewhat probative of the success of Opposer’s products under the mark, but that probative value is tempered by the lack of other data concerning the extent of use in the United States.31 Overall, we find that Opposer’s evidence it is insufficient to demonstrate that Opposer’s GEROVITAL mark falls on the strong end of the fame spectrum. 2. Applicant’s Argument Applicant, for its part, argues that use of “the commonly used suffix VITAL” weakens both parties’ marks.32 Specifically, Applicant argues that Both Applicant and Opposer’s marks consist of one word, that [sic] each contain a distinct prefix and suffix. As used on its packaging, Opposer emphasizes the suffix VITAL in its mark by using uniformly sized capital letters except for a stylized capital V in “GEROѴITAL.” In contrast, Applicant emphasizes the prefix Sero and the suffix Vital on its packaging by capitalizing both: “SeroVital.” 31 The content of Opposer’s website is hearsay. Thus, its evidentiary value is limited to what it shows on its face. See Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1040 (TTAB 2010) (Internet documents are admissible only to show what has been printed, not the truth of what has been printed); WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 (TTAB 2018) (Internet evidence constitutes hearsay and may not be relied on for the truth of the matters asserted therein). 32 23 TTABVUE 13-15 (Applicant’s Brief). Opposition No. 91245601 - 16 - A search of the USPTO trademark database reveals there are 107 Registered marks in Class 3 (cosmetics) that incorporate the root word VITAL. The common meaning of the word VITAL is “necessary to life.” None of the many users of the word VITAL in cosmetics have the right to exclusive use of the word VITAL. Accordingly, the existence of the common suffix VITAL, denoting its common meaning, weakens the distinctiveness of both the marks at issue.33 Applicant’s argument is unavailing. Because both parties’ marks are in standard characters, they may be displayed in any lettering style. Applicant’s mark “could [thus] be presented in the same manner of display” as Registrant’s mark and vice- versa. See 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.”) (citing Citigroup, 98 USPQ2d at 1259). Accordingly, “the [advertising] display of the mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark.” In re Big Pig Inc., 81 USPQ2d 1436, 1439 (TTAB 2006) (quoting Vornado, Inc. v. Breuer Elec. Mfg. Co., 390 F.2d 724, 727, 156 USPQ 340, 342 (CCPA 1968)). As for Applicant’s TESS listing of 63 (not 107) third-party registrations for marks that include the term VITAL in some form for goods in Class 3 that may or may not cover cosmetics, it has no probative value beyond what it shows on its face.34 The 33 Id. at 13-14 (citations omitted). 34 19 TTABVUE 82-85 (Applicant’s NOR, Exhibit 11). The others are pending applications, which are “not evidence of anything except that [they] filed on a certain date….” In re Ala. Tourism Dep’t., 2020 USPQ2d 10485, at *30 n.27 (TTAB 2020) (citing Wet Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1634 n.11 (TTAB 2007)). Opposition No. 91245601 - 17 - Board does not take judicial notice of registrations residing in the USPTO, and merely listing them is insufficient to make them of record. See, e.g., In re Morinaga Nyugyo K.K., 120 USPQ2d 1738, 1745 (TTAB 2016), (quoting J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:89) (“The mere citation of third party registrations is not proof of third party uses for the purpose of showing a crowded field and relative weakness. Third party registrations are not evidence of use so as to have conditioned the mind of prospective purchasers.”)); Calypso Tech. Inc. v. Calypso Capital Mgmt. LP, 100 USPQ2d 1213, 1217 (TTAB 2011) (summaries of search results for third-party registrations are not official records and have not been considered). Further, while Opposer does not dispute Applicant’s contention and evidence that “the common meaning of the word VITAL is ‘necessary to life,’”35 Applicant has not explained how the “VITAL” portion of Opposer’s GEROVITAL marks is descriptive or highly suggestive of cosmetics. Although the term “VITAL” may be somewhat suggestive of goods that are important, we cannot say based on this record that the term, when combined with the prefix “GERO-” as GEROVITAL, results in a mark that is so highly suggestive that the scope of protection accorded to Opposer’s registration should be limited. Instead we must assume that Opposer’s mark is, at least, suggestive of the goods identified in the Registration, but inherently distinctive. Hence, it must be accorded at least the normal scope of protection to which all inherently distinctive marks are entitled. In re Great Lakes Canning, Inc., 227 USPQ 35 Id. at 86-94 (Exhibit 12). Opposition No. 91245601 - 18 - 483, 485 (TTAB 1985) (“[T]he fact that a mark may be somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a limited scope of protection”). The fifth DuPont factor is neutral in our analysis. E. Similarity or Dissimilarity of the Marks We now address the first DuPont factor, which considers the “similarities or dissimilarities of the marks in their entireties as to appearance, sound, connotation and commercial impression.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 177). “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 Fed. Appx. 516 (Fed. Cir. 2019). The test is not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods and services offered under the respective marks is likely to result. See Cai v. Diamond Hong, 127 USPQ2d at 1801 (citing Coach Servs, 101 USPQ2d at 1721. Our focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of marks. Spoons Rests., Inc. v. Morrison, Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); 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.”). Opposition No. 91245601 - 19 - 1. Opposer’s Arguments Opposer argues that the parties’ marks are similar in appearance, sound, and overall commercial impression because (1) “Applicant’s SEROVITAL Mark and Opposer’s GEROVITAL Marks share the identical letter string ‘EROVITAL,’ the only difference being a slight difference in the first letter,” and (2) “differ only slightly in sound due to the first letter ‘S’ and ‘G’ respectively.”36 Because “the initial letter of Opposer’s mark being most commonly pronounced with a soft ‘G,’ … even the first syllables of the respective marks come close in sound. The parties’ marks thus have a high phonetic similarity and can be verbalized in a very similar manner by consumers.”37 2. Applicant’s Arguments Applicant, in contrast, argues that the marks are not similar because “there is a material difference in the visual appearance and sound created by the letter S in SEROVITAL and the letter G in GEROVITAL.”38 According to Applicant, this first letter difference is “[t]he most distinguishing and dominant feature in the marks at issue.”39 Specifically, Applicant contends that “the letter G [in GEROVITAL] is a plosive consonant, while the S [in SEROVITAL] is a sibilant fricative consonant— essentially opposite consonant sounds, that when alternatively used as the first letter in a word, create a look that is dramatically different, and make dramatically 36 20 TTABVUE 13-14 (Opposer’s Brief). 37 Id. at 14 (citations omitted). 38 23 TTABVUE 16 (Applicant’s Brief). 39 Id. Opposition No. 91245601 - 20 - different sounds when spoken.”40 Applicant asserts that “the English language contains numerous words … that start with a G and an S, and are followed by identical letters,” and lists thirty-seven pairs of words, such as game/same, gifted/sifted, and gin/sin, to argue that “English speakers are not confused by these words and … have not been confused by the distinction created by the letters G and S contained in GEROVITAL and SEROVITAL.”41 Applicant contends that “[t]his pattern has also been followed by the USPTO, that [sic] has registered several word marks in the same general product categories that are identical, except for a single G and S.”42 To illustrate this point, Applicant provided examples of thirty-party registrations of marks “in the same general product categories that are identical, except for a single G and S,” such as GLIDE/SLIDE, GLIDELOCK/SLIDELOCK, UPGLIDE/UPSLIDE, HYDROGLIDE/HYDROSLIDE, and GLOW/SLOW.43 Applicant also lists various prior decisions where the Board or a court found no likelihood of confusion with respect to marks Applicant contends have “more 40 Id. “Plosive,” as an adjective, means “of, or relating to, or being a speech sound produced by complete closure of the oral passage and subsequent release accompanied by a burst of air, as in the sound (p) in pit or (d) in dog.” “Sibilant,” as an adjective means “of, characterized by, or producing a hissing sound like that of (s) or (sh): the sibilant consonants; a sibilant bird call.” https://www.ahdictionary.com (accessed January 26, 2021). The Board may take judicial notice of dictionary definitions from online sources when the definitions themselves are derived from dictionaries that exist in printed form or have regular fixed editions. See In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). Contrary to Applicant’s contention, the G in GEROVITAL does not have a plosive sound. 41 Id. at 16-17. 42 Id. at 17. 43 19 TTABVUE 95-146 (Applicant’s NOR). Opposition No. 91245601 - 21 - resemblance that the marks at issue.”44 According to Applicant, the differences between the marks in the present case “are at least as material as those found not to be confusing” in the cited cases. Finally, Applicant argues that “[t]he difference between the prefixes GERO and SERO further widens when the [Board] considers the dramatically different commercial impression created by the different meanings of the words GEROVITAL and SEROVITAL. The dominant portion of the GEROVITAL mark is the prefix GERO.”45 To support these contentions, Applicant provides a dictionary definition of “GERO-” as a prefix or combining term meaning “old age”; a listing of thirty-four third-party registrations for marks that include the term GERO as part of a compound term to purportedly describe geriatric goods and services; and copies of four third-party registrations for the marks GERO (for services including research and development of pharmaceuticals for the treatment of age-related diseases), CSWE GER-ED CENTER and Design for services including promoting public awareness and gerontological competencies of programs to enhance the well-being of older adults), GERO SOLUTIONS (for relocation services for senior citizens), and GEROSCIENCE (for publication of journals, research articles, and scholarly essays in the field of the science of aging).46 Based on the foregoing, Applicant concludes that “[w]hen the commonly used prefix GERO is combined with the common suffix VITAL, 44 23 TTABVUE 18-19 (Applicant’s Brief). 45 Id. at 20. 46 19 TTABVUE 64-66, 72-81 (Applicant’s NOR, Exhibits 7, 9-10). Opposition No. 91245601 - 22 - the trademark creates a commercial impression that is highly suggestive of a product that is VITAL (i.e. important) for the geriatric population. Accordingly, this highly suggestive mark—which combines the commonly used prefix GERO with the weak suffix VITAL—is a relatively weak mark.”47 As to SERO, Applicant provides a dictionary definition showing it to be “a combining form representing serum in compound words.”48 Based on this definition, Applicant argues that “[c]onsumers are likely to continue to recognize and distinguish the commonly used suffix GERO in GEROVITAL, and its associated meaning, from the suffix SERO in SEROVITAL, with its associated meaning.”49 Summarizing, Applicant asserts that [T]he suggested impression of a consumer when confronted with a GEROVITAL-branded product—consisting of the prefix GERO and the suffix VITAL—is an important product for the geriatric population. In contrast, the suggested impression from a consumer confronted with a cosmetic product bearing the SEROVITAL mark—consisting of the prefix SERO and the suffix VITAL—is an important serum. Consumers are not likely to conflate such distinct meanings. Therefore, the different meanings conveyed by the marks at issue remove any likelihood of confusion between cosmetic products sold using the GEROVITAL marks and products sold using the SEROVITAL mark.50 3. Discussion As Opposer points out, the marks differ by only one letter, and they are very similar in overall appearance and sound. We acknowledge that there are minor 47 23 TTABVUE 20-21 (Applicant’s Brief). 48 18 TTABVUE 67-71 (Applicant’s NOR, Exhibit 8). 49 23 TTABVUE 21 (Applicant’s Brief). 50 Id (citations omitted). Opposition No. 91245601 - 23 - differences in appearance and sound due to the difference of the first letters “S” and “G,” but not to the extent argued by Applicant.51 Stated differently, we do not find that the marks are dramatically different in appearance, as Applicant urges, or that they have “essentially opposite consonant sounds,” whatever that means. The differences between the marks urged by Applicant may be noticeable in a side-by-side comparison of the marks, but the marks “‘must be considered … in light of the fallibility of human memory’ and ‘not on the basis of side-by-side comparison.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). In other words, we must bear in mind that consumers may not necessarily encounter the marks in proximity and must rely upon their recollections to compare them. See Neutrogena, 161 USPQ 687, 688 (CCPA 1969). Applicant’s observation that there are many English words that differ only by their first letter, such as S and G in this case, and that the USPTO has registered various SLIDE-/GLIDE-formative marks, or others differing only by the letters S and G, for different goods in “the same general product categories,” is immaterial to our review and demonstrates no pattern by the USPTO. Marks are not compared hypothetically and in a vacuum; the mere fact that the goods identified in two or more registrations fall into the “same general product categories registrations” does not mean they are related for likelihood of confusion purposes. It is well settled that each case must be decided on its own facts and the Board is not bound by prior decisions 51 See note 37, supra. Opposition No. 91245601 - 24 - involving different records. See In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). We do find, based on Applicant’s dictionary and third-party registration evidence, that the terms SERO and GERO may be understood to have differing connotations when used as a prefix (serum for SERO, and old age for GERO) as part of another term, but we are unpersuaded that consumers would necessarily understand the meaning of those terms or differentiate between them as to source. As noted above, our decision must be based “on the least sophisticated potential purchasers” in the consumer class, Stone Lion, 110 USPQ2d at 1163. In addition, as shown by Applicant’s Internet evidence, both parties’ goods include anti-aging serums. The subtle difference in connotation implied by the difference in one letter, for marks covering identical goods, may well be lost on consumers. The prior decisions cited by Applicant are distinguishable. For example, in Tektronix, Inc. v. Daktronics, Inc. 187 USPQ 588 (TTAB 1975), the Board found the evidence of thirty-eight third-party registrations for marks including the suffix “TRONICS” or “TRONIX” probative to suggest that the parties and third-party registrants have adopted those suffixes in their marks to convey that their products are electronic in character” and therefore found their inclusion alone an insufficient basis to predicate a holding of likelihood of confusion with the marks TEXTRONIX and DAKTRONICS. Id. at 592. Similarly, in Cutter Labs., Inc. v. Air Prods. & Chems., Inc., 189 USPQ 108 (TTAB 1975), a case upon which Applicant lays great stress, the Board found the evidence of twelve third-party registrations competent to suggest Opposition No. 91245601 - 25 - that the parties had “adopted and used the term ‘FLEX’ as a portion of their marks for well-known meanings to indicate the flexible character of their goods; that this would be the meaning attributed to it by purchasers of such goods; and that therefore the inclusion in each mark of the term ‘FLEX’ may be an insufficient basis per se, upon which to predicate a holding of a likelihood of confusion” with the marks RESIFLEX and STERIFLEX. Id. at 110. However, in the case at bar, the record does not support Applicant’s argument that the term “VITAL” is a descriptive or highly suggestive term that consumers would associate with cosmetics. Even if it did, we would find that the single letter difference between Applicant’s SEROVITAL mark and Opposer’s GEROVITAL mark insufficient to distinguish them as to source for identical cosmetics. Even those consumers who note the difference in the first letters of these marks would likely view them as variations from the same source, given the overall similarity in structure. We find that the marks are more similar than dissimilar when considered in their entireties. The first DuPont factor weighs in favor of finding a likelihood of confusion. F. Absence of Actual Confusion We turn now to the seventh DuPont factor, which considers the “nature and extent of any actual confusion” between the marks. DuPont, 177 USPQ at 567. Evidence of actual confusion, where it exists, is often highly probative of a likelihood of confusion. See Edom Labs, Inc. v. Lichter, 102 USPQ2d 1546, 1553 (TTAB 2012) (“The existence of actual confusion is normally very persuasive evidence of likelihood of confusion and Opposition No. 91245601 - 26 - undercuts any possible claim that the marks are so dissimilar that there can be no likelihood of confusion.”). The opposite, however, is not true; an absence of evidence of actual confusion often carries little weight. See In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003); Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992); J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). It is “meaningful only if the record indicates appreciable and continuous use by applicant of its mark for a significant period of time in the same markets as those served by opposer under its marks.” Citigroup Inc. v. Capital City Bank Group, Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011). Applicant argues that “a finding of theoretical likelihood of confusion would be illogical given the undisputed long history of no actual confusion in the marketplace,” and that “the undisputed facts showing no actual confusion creates a strong presumption that confusion is unlikely in this case.” Specifically, Applicant argues that “[f]rom 2014 to the present, millions of dollars’ worth of cosmetic products bearing the marks at issue have been sold in the cosmetics market. Enough time has passed for evidence of actual confusion, if it existed, to come to light. Notwithstanding, there has not been a single misplaced phone call, misdirected email, confused customer, or any other indicia of actual confusion” (internal citations omitted).52 Applicant’s argument is not supported by the record, which does not reflect an 52 23 TTABVUE 12-13 (Applicant’s Brief). Opposition No. 91245601 - 27 - appreciable and continuous use by Applicant for a significant period of time in the same markets served by Opposer. Citigroup, 94 USPQ2d at 1660. Although Applicant states that it has been selling cosmetics under the mark SEROVITAL since July 14, 2014, no sales of Applicant or Opposer are of record because Applicant did not properly make them of record (see note 18, supra). Even if they were, Applicant’s separate argument that the trade channels for the parties’ goods are distinctly different (which we reject for likelihood of confusion purposes because there are no limitations in either party’s identification of goods) undercuts the possibility that there has been an appreciable and continuous use by Applicant for a significant period of time in the same markets served by Opposer: Opposer argues, ipse dixit, that because both parties sell the goods at issue on the internet, they are selling goods in the same channel of trade. This argument fails because almost everyone sells their products on the internet. Opposer uses niche websites to market its products. Applicant’s products are not found for sale on these websites. Similarly, Applicant’s goods are sold on its own website … and other limited websites. Opposer’s goods are not available for purchase on any of these websites. The only website where both Opposer’s GEROVITAL-branded products and Applicant’s SEROVITAL-branded products are sold is the ubiquitous website Amazon. Amazon is not the corner store, where products sharing a class of goods can be found together on the same shelf. The only way an Amazon customer is going to find a GEROVOTAL-branded product on Amazon is to specifically search for it. And a search on Amazon.com for the word GEROVITAL only pulls GEROVITAL-branded products, not SEROVITAL-branded products. Similarly, a search for the word SEROVITAL on Amazon pulls only SEROVITAL-branded products, not GEROVITAL-branded products. A consumer of cosmetic products on Amazon has literally thousands of options for purchase. … For these reasons, the [Board] should find that there is not overlap in the channels of trade used to sell the products at Opposition No. 91245601 - 28 - issue.53 Based on the foregoing, we do not find the alleged absence of confusion to be probative. The seventh DuPont factor is neutral in our analysis. G. Good Faith Adoption Under the thirteenth DuPont factor, the Board may consider “any other established fact probative of the effect of use.” DuPont, 177 USPQ at 567. In this regard, Applicant argues that it was not aware of Opposer or Opposer’s GEROVITAL marks until immediately prior to this opposition; that it chose the name SEROVITAL to suggest to consumers of dietary supplements that they are purchasing a dietary supplement SERUM that would be VITAL; that the packaging for its SEROVITAL- branded cosmetics are dramatically different than Opposer’s GEROVITAL-branded cosmetics, with differing elements of color, font, and accompanying word elements; all of which “substantiate the fact that Applicant’s intent has never been to create confusion as to the source of its products.”54 Applicant is essentially arguing that the adoption of its mark was in good faith, which is unavailing. While evidence of the bad faith adoption of a mark is strong evidence that confusion is likely because an inference is drawn from the imitator’s expectation of confusion, good faith adoption typically does not aid an applicant attempting to establish no likelihood of confusion. See J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991) (“Whether 53 Id. at 26-27 (citations omitted). 54 Id. at 22-24. Opposition No. 91245601 - 29 - there is evidence of intent to trade on the goodwill of another is a factor to be considered, but the absence of such evidence does not avoid a ruling of likelihood of confusion (citation omitted).”). Stated differently, that Applicant did not intend to cause confusion by adopting a similar mark in connection with identical goods does not justify registration if confusion is likely to occur. See Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975); Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635 (TTAB 1988). The thirteen DuPont factor is neutral. IV. Conclusion On the basis of the preceding factors favoring Opposer, we find that Opposer has established its claim of likelihood of confusion. Applicant, as the newcomer, had an obligation to select a mark that would avoid confusion, but it did not do so. See L'Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012) (“The fact remains that a newcomer has both the opportunity and obligation to avoid confusion.”). Decision: The opposition is sustained and registration to Applicant is refused.