International Franchise Inc.

Trademark Trial and Appeal Board

Jun 4, 2020

88033521 (T.T.A.B. Jun. 4, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 4, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re International Franchise Inc.
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Serial No. 88033521
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Arthur J. DeBaugh of Bell, Davis & Pitt, P.A.,
for International Franchise Inc.
Andrea Koyner Nadelman, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
_____

Before Mermelstein, Pologeorgis and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
International Franchise Inc. (“Applicant”) seeks registration on the Principal
Register of the mark SCHMEAR (in standard characters) for “body oils not for use for
the treatment or prevention of diaper rash; essential oils not for use for the treatment
or prevention of diaper rash; scented oils not for use for the treatment or prevention
of diaper rash” in International Class 3.1

1 Application Serial No. 88033521 filed on July 11, 2018 under Trademark Act Section 1(b),
15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the
mark in commerce.
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the goods identified in the application, so resembles the mark REAR SCHMEAR
(“REAR” disclaimed) for “non-medicated diaper rash ointments and lotions” in
International Class 3,2 registered on the Principal Register, as to be likely to cause
confusion, to cause mistake, or to deceive. After the Trademark Examining Attorney
made the refusal final, Applicant appealed to this Board. Both Applicant and the
Examining Attorney filed briefs. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
The Examining Attorney objects3 to Applicant’s explanation in its Appeal Brief of how
students learn to read. The explanation purportedly is based on an excerpt from an
article titled “Decoding Multisyllabic Words” in the publication SCHOLASTIC TEACHER.
A copy of the article was not made of record during the prosecution of the SCHMEAR
application. Instead, Applicant merely provided a hyperlink to the article in its brief.4
The record in an application should be complete prior to the filing of an appeal.
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). Because Applicant untimely provided

2 Registration No. 5305951, issued October 10, 2017.
3 Examiner’s Brief, 6 TTABVUE 4. Page references herein to the application record refer to
the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”)
system. All citations to documents contained in the TSDR database are to the downloadable
.pdf versions of the documents in the USPTO TSDR Case Viewer. References to the briefs on
appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is
the docket entry number; and after this designation are the page references, if applicable.
4 Applicant’s Brief, 4 TTABVUE 5.
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the hyperlink to the SCHOLASTIC TEACHER article during its appeal, we disregard it.
See In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018), aff’d per
curiam, 777 Fed. App’x 516 (Fed. Cir. 2019); In re Fiat Grp. Mktg. & Corp. Commc’ns
S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014).
Notwithstanding, merely submitting a hyperlink to a published article is
insufficient to make its contents of record. To properly introduce the article into the
record, Applicant should have provided a capture of the webpage relied upon, the date
the webpage was accessed, and the complete URL address where the article may be
found. In re I-Coat Co., LLC, 126 USPQ2d 1730, 1733 (TTAB 2018); In re Olin Corp.,
124 USPQ2d 1327, 1331 n.15 (TTAB 2017) (citing In re Powermat Inc., 105 USPQ2d
1789, 1791 (TTAB 2013). Applicant did not do so. Accordingly, the Examining
Attorney’s evidentiary objection is sustained and we give no consideration to the
“Decoding Multisyllabic Words” article from the SCHOLASTIC TEACHER publication nor
any of Applicant’s discussion thereof.
II. Likelihood of Confusion - Applicable Law
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 Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
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must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
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, 1260 (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. See In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
III. Analysis
We now review the arguments of Applicant and the Examining Attorney in view
of applicable law and the evidence of record. Notably, the only likelihood of confusion
factors Applicant and the Examining Attorney focused on in this appeal are the
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strength of the Registrant’s REAR SCHMEAR mark, the similarity of the REAR
SCHMEAR and SCHMEAR marks, the relatedness of the goods associated with each
mark, and the channels of trade and prospective purchasers therefor.
A. Comparison of the Marks
1. Strength of the Registered Mark
Applicant argues that “[t]he ‘SCHMEAR’ element of the Cited Mark [REAR
SCHMEAR] is highly descriptive because it immediately describes a quality,
characteristic, function, feature, purpose or use of the specified goods when used in
conjunction with the first element of the Cited Mark (‘REAR’), namely, that the goods
are intended to be ‘schmeared’ on the ‘rear.’”5
“[I]nasmuch as the cited mark is registered on the Principal Register, we must
assume that it is at least suggestive and we cannot entertain Applicant’s argument
that the registered mark is descriptive of Registrant’s … [goods].” In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016) (citing In re Fiesta Palms
LLC, 85 USPQ2d 1360, 1363 (TTAB 2007)). See also Trademark Act Section 7(b), 15
U.S.C. § 1057(b) (“A certificate of registration of a mark upon the principal register
… shall be prima facie evidence of the validity of the registered mark … on or in
connection with the … services specified in the certificate….”). Moreover, during ex
parte prosecution, including an ex parte appeal, an applicant will not be heard on
matters that constitute a collateral attack on the cited registration. In re Dixie Rests.
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997); In re Peebles Inc., 23

5 Applicant’s Brief, 4 TTABVUE 4.
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USPQ2d 1795, 1797 n.5 (TTAB 1992). We therefore find Registrant’s REAR
SCHMEAR mark to be at least suggestive, inherently distinctive and entitled to
protection.
Further, assuming arguendo that the Registrant’s REAR SCHMEAR mark was
conceptually weak, even marks deemed as such are entitled to protection under
Trademark Act Section 2(d) against the registration by a subsequent user of a similar
mark for closely related goods. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108, 109 (CCPA 1974); In re Max Capital Grp. Ltd., 93 USPQ2d
1243, 1246 (TTAB 2010).
Thus, on this record, we find that the REAR SCHMEAR mark is inherently
distinctive in connection with the Registrant’s goods, favoring a finding of likelihood
of confusion.
2. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and the Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018); “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).
“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.” In re i.am.symbolic, llc, 123 USPQ2d at 1748. “The focus is on
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the recollection of the average purchaser, who normally retains a general rather than
a specific impression of trademarks.” In re Assoc. of the U.S. Army, 85 USPQ2d 1264,
1268 (TTAB 2007).
Applicant argues that:
Applicant’s Mark [SCHMEAR] and the Cited Mark [REAR SCHMEAR]
are dissimilar in terms of overall appearance and commercial
impression when viewed in their entireties. The Cited Mark is a
composite mark, combining two words (“Rear” and “Schmear”) to create
a commercial impression that is subject to very little interpretation or
mistake. REAR SCHMEAR brand products are clearly intended for use
on a person’s buttocks or “rear.” In connection with diaper rash
ointments and lotions, in particular, there can be no doubt that REAR
SCHMEAR brand products are intended to be smeared on an
individual’s bottom.
* * *
Whereas there can be little or no doubt as to what (or where) a REAR
SCHMEAR brand diaper rash ointment or lotion is intended for,
consumers would have to use a multi-step process to attempt to
determine the function of Applicant’s SCHMEAR brand products. … As
“Rear” is an easily recognizable word and the first word in the Cited
Mark [REAR SCHMEAR], prospective purchasers are far more likely to
see that portion of the “Rear Schmear” mark as the dominant element.6
The Examining Attorney argues:
[T]he dominant portion of the registrant’s mark [REAR SCHMEAR] is
the term SCHMEAR, as the term REAR is disclaimed as descriptive.
The term REAR describes the intended location where the registrant’s
goods are applied, namely, a person’s rear end. The applicant’s mark,
SCHMEAR, consists solely of the dominant portion of the registrant’s
mark. Thus, the dominant portion of the registrant’s mark is identical
to the applicant’s mark. … The applicant’s mark, SCHMEAR, is entirely
incorporated into the registrant’s mark, REAR SCHMEAR. Where the
compared marks consist, as in the present case, of one mark entirely
incorporated within another, likelihood of confusion under [Trademark
Act] Section 2(d) has often been found [citations omitted].

6 Applicant’s Brief, 5 TTABVUE 4-5.
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* * *
Although applicant’s mark does not contain the entirety of the
registered mark, applicant’s mark is likely to appear to prospective
purchasers as a shortened form of registrant’s mark. [citation omitted].
Thus, merely omitting some of the wording from a registered mark –
especially the descriptive portion of the registered mark – may not
overcome a likelihood of confusion. … In this case, applicant’s mark does
not create a distinct commercial impression from the registered mark
because it contains some of the wording in the registered mark and does
not add any wording that would distinguish it from that mark.7
We agree with Applicant that the similarity or dissimilarity of two marks is
determined based on the marks in their entireties, and our analysis cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. Franklin Mint
Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). “On the other
hand, in articulating reasons for reaching a conclusion on the issue of confusion, there
is nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s argument that the term “REAR” in the Registrant’s REAR SCHMEAR
mark distinguishes it from Applicant’s SCHMEAR mark is not well taken. In fact,
the general rule suggests the opposite. “[T]he presence of an additional term in the

7 Examiner’s Brief, 6 TTABVUE 6-7.
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[Registrant’s] mark does not necessarily eliminate the likelihood of confusion if some
terms are identical.” In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260
(Fed. Cir. 2010) (affirming the Board’s finding that the applicant’s mark ML is likely
to be perceived as a shortened version of the registrant’s mark ML MARK LEES when
used on the same or closely related skin care products).
If, as in this case, a significant portion of both marks is the same (the term
“SCHMEAR”), then the marks may be similar notwithstanding some differences. See,
e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014) (affirming the Board’s finding that applicant’s
mark STONE LION CAPITAL incorporated the entirety of the registered marks
LION CAPITAL and LION, and that the noun LION was the dominant part of both
parties’ marks). Further, disclaimed, descriptive matter, such as the term “REAR” in
the Registrant’s mark, has less significance in likelihood of confusion determinations.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive
component of a mark may be given little weight in reaching a conclusion on the
likelihood of confusion.’”) (quoting In re Nat’l Data, 224 USPQ at 751 (Fed. Cir. 1985)).
In this connection, we note that REAR in the Registrant’s REAR SCHMEAR mark is
an adjective which modifies SCHMEAR, making SCHMEAR the focus of the mark.
We find that the marks SCHMEAR and REAR SCHMEAR appear and sound
similar in that they share the dominant term “SCHMEAR,” notwithstanding the
addition of the disclaimed, descriptive term “REAR” in the Registrant’s REAR
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SCHMEAR mark. Additionally, because REAR rhymes with SCHMEAR, the
additional wording does not detract from the aural similarity of the identical term
SCHMEAR in Applicant’s and the Registrant’s marks.
Regarding Applicant’s and the Registrant’s respective products (body oils vs.
diaper rash ointments and lotions), the term “SCHMEAR” suggests the same activity,
that is, to smear or spread the product on the body or a part of the body.8 That
SCHMEAR “may have other meanings in different contexts [as Applicant argues]9 is
not controlling.” In re Carlson, 91 USPQ2d 1198, 1200 (TTAB 2009) (citing In re
Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979)). Because both marks are
associated with related goods that feature the word SCHMEAR, this term is likely to
carry the same connotation in both instances. Thus, we also find that the marks
SCHMEAR and REAR SCHMEAR have similar meanings and overall commercial
impressions. The first DuPont factor, therefore, favors a finding that confusion is
likely.
B. The Similarity or Dissimilarity and Nature of the Goods

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d

8 See definitions of “SCHMEAR” provided as part of Applicant’s Office Action Response of
April 16, 2019 at TSDR 7.
9 Applicant’s Brief, 4 TTABVUE 5.
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747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
“Likelihood of confusion must be found as to the entire class of [goods] … identified
if there is likely to be confusion as to any [product] … that comes within the recitation
of [goods] … in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
The goods need not be identical or even competitive to find a likelihood of
confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [the goods] … emanate from the same source.” Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant goods are used by the same purchasers;
advertisements showing that the relevant goods are advertised together or sold by
the same manufacturer or dealer; or copies of use-based registrations of the same
mark for both Applicant’s goods and the goods listed in the cited registration. See,
e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding pepper sauce and
agave related where evidence showed both were used for the same purpose in the
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same recipes and thus consumers were likely to purchase the products at the same
time and in the same stores).
As evidence of product relatedness, the Examining Attorney made of record copies
of 24 third-party use-based registrations, each depicting the same mark for both
Applicant’s goods and the goods listed in the cited registration.10 Although such
registrations are not evidence that the registered marks are in use or that the public
is familiar with them, they nonetheless have some probative value to the extent that
they serve to suggest that the goods identified in those registrations are of a kind
which may emanate from a single source under a single mark. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The Examining Attorney also provided captures from nine websites showing, at
each site, that the same entity promotes and offers for sale under the same mark the
types of goods identified in Applicant’s involved application and the cited registration:
• BURT’S BEES – offering facial oil, cleansing oil, body oil, body and bath oil and
diaper rash ointment.
• SAJÉ – offering body oils and essential oils as well as diaper rash ointment.
• THE HONEST CO. – offering body oils as well as diaper rash creams.
• CALIFORNIA BABY – offering body oil and diaper rash creams and ointments.
• WELEDA – offering body oils and diaper rash cream.
• MUFFETTA NATURALS – offering skin and body oils, baby diaper oils and baby
“bum” balm.
• ENESSA – offering ginger body oil and diaper care cream for diaper rash.
• CEDAR CREEK ESSENTIALS – offering body oils and diaper rash cream.

10 Third-party registrations made of record with the Office Action of October 17, 2018 at TSDR
9-53, 82-83.
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• ABSOLUTELY NATURAL – offering scented and unscented body oils and diaper
cream.11
We find the third-party registration evidence and the Internet website evidence
together amply demonstrate the relatedness of Applicant’s and Registrant’s goods.
Applicant attempts to distinguish its goods from the Registrant’s goods by arguing
that none of its identified goods are for treating or preventing diaper rash.12 As noted
above, however, the goods at issue need not be identical to support a finding of
likelihood of confusion. They need only be related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source. Here, the evidence of record
clearly shows that Applicant’s goods and Registrant’s goods are related because they
are the types of goods provided by the same entities under the same marks. The
respective goods also are used for the same purpose — as an emollient — although
one is for the “rear” and the other is used elsewhere on the body.
Thus, the second DuPont factor also favors a finding of likelihood of confusion.
C. The Similarity or Dissimilarity of Trade
Channels and Classes of Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the goods as they are identified in the application and the cited registration. Octocom

11 Captures of the BURT’S BEES, SAJÉ and THE HONEST CO. websites were made of record
with the Office Action of October 17, 2018 at TSDR 54-79; captures of the CALIFORNIA BABY,
WELEDA, MUFFETTA NATURALS, ENESSA, CEDAR CREEK ESSENTIALS and ABSOLUTELY
NATURAL websites were made of record with the Office Action of May 8, 2019 at TSDR 6-36.
12 Applicant’s Brief, 4 TTABVUE 7.
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Sys., Inc. v. Hous. Comp. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813,
1815 (Fed. Cir. 1987); Mini Melts v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1471
(TTAB 2016). Neither Applicant’s application nor the cited registration contain any
limitations as to trade channels or classes of customers, and we may not read any
limitation into them. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed.
Cir. 1983), quoted in In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1091 (TTAB 2016); In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-Mart,
Inc., 119 USPQ 139 (CCPA 1958)). Therefore, the goods of both Applicant and the
Registrant must thus be assumed to travel in all channels of trade usual for such
goods.
The only evidence relating to the trade channels through which the goods at issue
travel is the third-party website evidence submitted by the Examining Attorney,
discussed above. This evidence shows that the goods identified in Applicant’s
application, as well as goods identified in the cited registration, may be offered via
the same virtual marketplace to all relevant classes of purchasers, i.e., individuals
interested in skin care. It further is common knowledge that skin care products,
including lotions for diaper rash, may be purchased at drug stores, pharmacies and
supermarkets. Thus, the respective goods, as identified, would be provided in the
same or at least overlapping channels of trade to the same or overlapping classes of
purchasers. Thus, the third DuPont factor weighs in favor of a finding a likelihood of
confusion.
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IV. Conclusion: Likelihood of Confusion
The first, second, and third DuPont factors favor a finding of likelihood of
confusion. Neither Applicant nor the Examining Attorney presented evidence or
argument in their briefs as to the other DuPont factors and, accordingly, we treat
those factors as neutral. As the Registrant’s mark is inherently distinctive, the marks
at issue are similar, and the goods are related and would travel in overlapping trade
channels to the same or overlapping classes of purchasers, we find that Applicant’s
SCHMEAR mark, used in connection with Applicant’s goods, so closely resembles the
registered REAR SCHMEAR mark as to be likely to cause confusion, mistake or
deception as to the source of Applicant’s goods.
Decision:
The refusal to register Applicant’s SCHMEAR mark under Trademark Act
Section 2(d) is affirmed.