Nelson Jewellery Arts Co, Ltd.

Trademark Trial and Appeal Board

Jul 31, 2008

No. 78557247 (T.T.A.B. Jul. 31, 2008)

Mailed:
7/31/2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

In re Nelson Jewellery Arts Co., Ltd.
________

Serial No. 78557247

_______

Seth Natter, of Natter & Natter, for Nelson Jewellery Arts
Co., Ltd.

Michael Kazazian, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Walters, Mermelstein, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Ritchie de Larena, Administrative Trademark
Judge:

Nelson Jewellery Arts Co., Ltd. filed an application
to register the mark CALLA, in standard character format,
for “precious stones, namely, diamonds having two
diagonally opposed pointed corners and two diagonally
opposed rounded corners mounted on rings and earrings” in
International Class 14.1
The trademark examining attorney refused registration
of the mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s

1 Application Serial No. 78557247, filed January 31, 2005,
pursuant to Section 1(a) of the Trademark Act, 15 USC §1051(a),
claiming first use and first use in commerce on August 1, 2004.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 78915364
2
mark so resembles the following mark, registered for
“watches, chronometers, and clocks,” 2 that when used in
connection with applicant’s identified goods, applicant’s
mark will be likely to cause confusion:

Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney
filed briefs. For the reasons discussed herein, the Board
affirms the final refusal to register.
We base our determination under Section 2(d) on an
analysis of all of the relevant, probative evidence of
record. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods. See Federated Foods, Inc. v. Fort Howard Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by §2(d) goes to the

2 Registration No. 2839413, registered May 11, 2004 in
International Class 14, filed pursuant to Section 44(e) of the
Trademark Act, 15 USC §1126(e).
Serial No. 78915364
3
cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks”). We consider each of the factors as to which
applicant or the examining attorney presented arguments or
evidence.

The similarity or dissimilarity of the marks
in their entireties
We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). Visually, the marks are the
same, with just the stylized “K” in the registered mark
replaced by a “C” in applicant’s mark. The letters “K” and
“C” sound the same when followed by an “A,” as here.
Accordingly, applicant’s mark, KALLA and the registered
mark, CALLA sound identical.
Applicant argues that the marks have distinct
connotations and commercial impressions. In particular,
applicant points to a translation in the registration,
showing KALLA to mean “wonderful, or marvelous.” For its
part, applicant says that CALLA connotes in a consumer’s
mind the plant known as a calla lilly. However, applicant
has provided scant evidence of the commercial impression
likely to be left by either mark, much less any distinction
likely to be made by a consumer between them.
Serial No. 78915364
4
In comparing the marks, we are mindful that the test
is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their
overall commercial impression so that confusion as to the
source of the goods and/or services offered under the
respective marks is likely to result. San Fernando Electric
Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683,
196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff'd
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The
proper focus is on the recollection of the average
customer, who retains a general rather than specific
impression of the marks. Winnebago Industries, Inc. v.
Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
We find that the change from “K” to “C,” with a
resulting identical sound, does not create a sufficiently
distinct commercial impression to obviate a likelihood of
confusion between the marks. See In re U.S. Shoe Corp.,
229 USPQ 707(TTAB 1985)(“CAREER IMAGE” AND “CREST CAREER
IMAGES”); In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d
1944 (Fed. Cir. 2004)(“GASPAR’S ALE” and “JOSE GASPAR
GOLD”); Lilly Pulitzer, Inc. v. Lilly Ann Corp., 376 F.2d
324, 153 USPQ 406 (CCPA 1967)(“THE LILLY” and “LILLI ANN”);
In re Riddle, 225 USPQ 630 (TTAB 1985)(“ACCUTUNE” and
Serial No. 78915364
5
“RICHARD PETTY’S ACCU TUNE”). Accordingly, the first du
Pont factor weighs heavily in favor of finding that there
is a likelihood of consumer confusion.

The similarity or dissimilarity
and nature of the services, channels of trade, and
classes of consumers
Preliminarily, we note that the greater the degree of
similarity between the applicant’s mark and the cited
registered mark, the lesser the degree of similarity
between the applicant’s goods or services and registrant’s
goods or services necessary to support a finding of
likelihood of confusion. In re Opus One, Inc., 60 UPSQ2d
1812, 1815 (TTAB 2001); In re Concordia International
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
Furthermore, it is not necessary that the goods at issue be
similar or competitive, or even that they move in the same
channels of trade to support a holding of likelihood of
confusion. It is sufficient instead that the respective
goods are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods are such that they would or could be encountered by
the same persons under circumstances that could, because of
the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. See In
re International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
Serial No. 78915364
6
The examining attorney has submitted ample evidence
that “watches” and/or “clocks,” as covered by the cited
registration, are related to jewelry such as “diamonds,” as
covered by the pending CALLA application. In particular,
the examining attorney submitted at least 15 third-party
registrations that include both “watches” and/or “clocks”
as well as “diamonds.” The examining attorney also
submitted at least 13 third-party registrations that
include both “watches” and/or “clocks” as well as “fine
jewelry.” These third-party registrations are indicative
of the likelihood that consumers will believe watches and
clocks may emanate from the same source as diamonds and
fine jewelry. To further support that contention, the
examining attorney submitted evidence from at least 15
websites advertising both “watches” and/or “clocks” along
with “diamonds,” “rings,” and “earrings.” We find the
evidence submitted by the examining attorney to be
probative of the relatedness of applicant’s goods to those
of registrant.
There is nothing in the recital of goods in the cited
registration to limit registrant from targeting the same
consumers as applicant. In the absence of specific
limitations in the registration, we must presume that
registrant’s goods will travel in all normal and usual
channels of trade and methods of distribution and be sold
to all classes of consumers. Squirtco v. Tomy Corporation,
697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983).
Serial No. 78915364
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Applicant argues that it targets a sophisticated
consumer who would be more likely to distinguish between
the KALLA and CALLA marks. Applicant’s only evidence in
support of this point is a third-party article which states
that applicant’s “Calla Collection” ranges in price from
$500 to $40,000. With such scant evidence, we cannot say
that the conditions of sale mitigate a likelihood of
confusion. Furthermore, it is well-established that even a
sophisticated consumer is not immune from source confusion.
Since the marks are almost identical visually and are
identical phoenetically, even a careful, sophisticated
consumer is not likely to note minor differences, if any,
in the content or target audience. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir. 2000).
In view of the foregoing, the second, third and fourth
du Pont factors weigh in favor of finding that there is a
likelihood of consumer confusion.
Balancing The Factors
Considering all of the evidence of record as it
pertains to the du Pont factors, we conclude that the marks
are nearly identical visually and are identical
phoenetically; that the goods are related; and they are
likely to be sold through the same channels. It is well-
established that any doubts as to likelihood of confusion
are to be resolved in favor of the registrant. In re Hyper
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Cir. 1988). Accordingly, we find a likelihood of confusion
Serial No. 78915364
8
between applicant’s mark, CALLA, and the registered mark,
KALLA.
Decision: The refusal to register is affirmed.