Reebok International Limited

Trademark Trial and Appeal Board

Mar 29, 2021

88172627 (T.T.A.B. Mar. 29, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Reebok International Limited
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Serial No. 88172627
_____

John Zaccaria of Notaro, Michalos & Zaccaria P.C.,
for Reebok International Limited.
James Prizant, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____

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

Opinion by Johnson, Administrative Trademark Judge:
I. Background
Reebok International Limited (“Applicant”) seeks registration on the Principal
Register of the mark PUREMOVE, in standard characters (“Applicant’s Mark”), for
“sports bras” in International Class 25.1

1 Application Serial No. 88172627 filed on October 29, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as August 17, 2018.
Citations to the record or briefs are to the publicly available documents in TTABVUE, the
Board’s electronic docketing system. See, e.g., Turdin v. Trilobite, Ltd., 109 USPQ2d 1473,
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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 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 Registered Mark
PUREMOVE (in standard characters) for “armbands specially adapted for personal
electronic devices, namely, mobile phones” in International Class 9,2 as to be likely to
cause confusion.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
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).

1476 n.6 (TTAB 2014). The number preceding “TTABVUE” corresponds to the docket entry
number; the number(s) following “TTABVUE” refer to the page number(s) of that particular
docket entry, if applicable. Citations to the application record are to pages in the Trademark
Status and Document Retrieval (TSDR) database of the United States Patent and Trademark
Office (USPTO). All citations to documents contained in the TSDR database are to the
downloadable .pdf versions of the documents in the USPTO TTABVUE Case Viewer.
2 Registration No. 4,631,612, issued November 4, 2014 [hereinafter the “Registered Mark”].
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However, “each case 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 the various DuPont factors 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) (“[T]he 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.’”)).
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III. Likelihood of Confusion – Analysis
We now consider the arguments of Applicant and the Examining Attorney, the
applicable law, and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney discussed are the similarity or dissimilarity
of Applicant’s and Registrant’s PUREMOVE marks, the relatedness of the goods
associated with the respective marks, and the channels of trade in which the marks
and goods travel. We discuss these factors, and more, below.
A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and 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 Inn at St. John’s, 126 USPQ2d 1742, 1746
(TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
It is undisputed that Applicant’s Mark, PUREMOVE, is identical to the
Registered Mark, PUREMOVE, in its entirety. As a result, the first DuPont factor
weighs heavily in favor of a finding of likelihood of confusion. See In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)
(“This factor weighs heavily against applicant, as the two word marks are
identical … .”).
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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.” When analyzing
the second DuPont factor, we look to the identifications of goods in the application
and cited registration. Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); see Octocom Sys., Inc. v. Houston
Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)
(“The authority is legion that the question of registrability of an applicant’s mark
must be decided on the basis of the identification of goods set forth in the application
regardless of what the record may reveal as to the particular nature of an applicant’s
goods, the particular channels of trade or the class of purchasers to which sales of the
goods are directed.”). The goods do not have to be identical or even competitive in
order to find that there is a likelihood of confusion. In re Iolo Techs., LLC,
95 USPQ2d 1498, 1499 (TTAB 2010); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366,
1368 (TTAB 2009). The issue is not whether the goods will be confused with each
other, but rather whether the public will be confused as to their source. See Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the
goods in question are different from, and thus not related to, one another in kind, the
same goods can be related in the mind of the consuming public as to the origin of the
goods. It is this sense of relatedness that matters in the likelihood of confusion
analysis.”). It is sufficient that the goods of the applicant and the registrant are
related in some manner or that the conditions surrounding their marketing are such
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that they are likely to be encountered by the same persons under circumstances that,
because of the marks used in connection therewith, would lead to the mistaken belief
that they originate from the same source. See, e.g., 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));
On- line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475
(Fed. Cir. 2000).
Where, as here, the marks of the respective parties are identical, the relationship
between the goods need not be as close to support a finding of likelihood of confusion
as would be required if there were differences between the marks. In re Shell Oil Co.,
26 USPQ2d at 1689; In re Iolo Techs., 95 USPQ2d at 1499.
Evidence of relatedness may include news articles or third-party websites showing
that the relevant goods are used by purchasers for the same purpose; advertisements
showing that the relevant goods are advertised together; or copies of use-based
registrations of the same mark for both Applicant’s identified goods and the goods
listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d at 1817 (finding
pepper sauce and agave related where evidence showed both were used for the same
purpose in the same recipes, and thus consumers were likely to purchase the products
at the same time and in the same stores).
Applicant claims that the “sports bras” offered under its mark, PUREMOVE
(shown below), are distinct from the “armbands specially adapted for personal
electronic devices, namely, mobile phones” offered under the Registered Mark
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because “[s]ports bras are not used to store mobile phones and are not worn on an
arm.”3
4

3 Applicant’s Appeal Brief, 11 TTABVUE 10.
4 May 13, 2019 Response to Office Action, p. 17, located at www.reebok.com/us.
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In turn, the Examining Attorney argues that the goods are related because
“consumers often encounter them under a single mark, and because they are of
particular interest to intersecting classes of consumers, women athletes and runners
in particular.”5 To demonstrate such relatedness, the Examining Attorney made of
record Internet evidence of webpages showing that it is common for a single entity to
offer both sports bras and armbands adapted for mobile phones under the same mark.
See In re Detroit Athletic Co., 128 USPQ2d at 1051 (relatedness supported by evidence
that third parties sell both types of goods under same mark, showing that “consumers
are accustomed to seeing a single mark associated with a source that sells both.”).
For example:

5 Examiner’s Statement, 13 TTABVUE 6, 10-11.
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Reebok: 6

6 Nov. 17, 2018 Office Action at pp. 48-50, located at www.reebok.com/us.
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Mizuno:7

7 July 30, 2019 Final Office Action at pp. 19, 21, located at www.mizunousa.com.
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Puma:8

8 Nov. 17, 2018 Office Action at pp. 32-38, located at https://us.puma.com/en/us.
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Sweaty Betty:9

9 July 30, 2019 Final Office Action at pp. 42-47, located at www.sweatybetty.com/us.
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1. Evidence from Websites Featuring House Marks
Applicant argues that the Examining Attorney’s evidence of relatedness—all showing
sports bras and armbands adapted for mobile phones offered under famous10 or

10 Citing DuPont, Applicant contends that “[f]ame, the subject of the fifth DuPont factor, also
plays an important role in the evaluation of the evidence offered by the Office.” 11 TTABVUE
11. Applicant’s attempt to apply the fifth DuPont factor, “the fame of the prior mark,” to the
Examining Attorney’s Internet evidence is misplaced. The fifth factor is not normally
applicable in ex parte proceedings, as the owner of the cited registration (“the prior mark”) is
not a party to the ex parte appeal, and the Examining Attorney is under no obligation to
demonstrate the fame of the cited registered mark. In re Thomas, 79 USPQ2d 1021, 1027 n.11
(TTAB 2006). So the “fame of the mark” factor generally is treated as neutral in an ex parte
context. See In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1086-88 (TTAB 2016). The registered
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well- known house marks such as Nike, Adidas, Under Armour, Puma, Asics, Fila,
Champion, Mizuno, New Balance, and Reebok,11 as well as under house marks that
are not well-known, such as Sweaty Betty12—should be given no, or de minimis,
weight because house marks are typically used on a wide variety of goods and
services, and are not necessarily reflective of the marketplace in general for such
goods.13 We acknowledge that the Examining Attorney’s evidence features house
marks. However, our approach to weighing such “house mark evidence” here is more
nuanced, reflecting the changing consumer marketplace.
Over thirty years ago, well before e-commerce was commonplace, we gave “little
weight” to third-party registrations for a brick-and-mortar department store and an
amusement park because both entities offered a wide variety of goods and services.
In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Over
twenty years later, the quality of the proffered evidence in another case still
persuaded us to find that the Office’s third-party registration and website evidence
was not probative of relatedness since it was “from sources which sell a broad range
of varied and unrelated goods online.” In re Princeton Tectonics, Inc.,
95 USPQ2d 1509, 1511 (TTAB 2010). There, nearly all of the Office’s evidence
included websites from international business to business trading platforms

mark is treated as valid and entitled to the statutory presumptions afforded by Section 7(b)
of the Trademark Act. 15 U.S.C. § 1057(b); In re Fat Boys Water Sports LLC,
118 USPQ2d 1511, 1517 (TTAB 2016).
11 Nov. 17, 2018 Office Action at pp. 6, 10-50; July 30, 2019 Final Office Action at pp. 6-41.
12 July 30, 2019 Final Office Action at pp. 42-56.
13 Applicant’s Appeal Brief, 11 TTABVUE 11-18.
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featuring a vast variety of goods, and mass online retailers such as Alibaba.com; use-
based, third-party registrations for unrelated goods; and house mark registrations for
a wide variety of goods. Id. at 1510-12. One third-party house mark registration had
an identification of goods that extended over five pages, with disparate items such as
agricultural irrigation units, bicycle lights, cotton candy making machines, drinking
fountains, cryorefrigerators, electric espresso machines, energy storage plants,
nuclear reactors, sewage treatment plants, and hot tubs. Id. at 1511.
Here, the Examining Attorney proffered evidence from seventeen Internet
websites, all which offer the goods in question featuring the aforementioned house
marks. Three websites are for the online operations of brick and mortar mass
retailers JC Penney, Nordstrom, and Target. One website is for the mass online
retailer Amazon.com; one is for a large online clothing retailer, Asos.com; one is for a
large online shoe retailer, Shoebacca.com; and one website is for the online operations
of Best Buy, the large consumer electronics and appliance retailer. Like our findings
in Mucky Duck and Princeton Tectonics, this evidence has little probative value since
it is from sources which sell a broad variety of goods online, and is insufficient to show
that consumers would encounter the goods at issue here in circumstances which
would lead to a likelihood of confusion.
The remainder of the Examining Attorney’s evidence is from the various Internet
websites featuring the house marks. The record reflects that sports bras are offered
at the Nike, Adidas, Under Armour, Asics, Fila, and New Balance websites under a
house mark, a product mark, or a house mark paired with a product mark, and that
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the aforementioned mass retailers offer armbands adapted for mobile phones
featuring the Nike, Adidas, Under Armour, Asics, Fila, and New Balance house
marks or distinct product marks. But the record also reflects that both sports bras
and armbands adapted for mobile phones are offered at the Puma, Reebok, Mizuno,
and Sweaty Betty websites under their respective house marks and/or a product
mark. Unlike the house marks that were used to offer the wide variety of disparate
goods and services in Mucky Duck and Princeton Tectonics, here, the use of these
house marks (Puma, Reebok, Mizuno, and Sweaty Betty) is limited to the sportswear,
athletic apparel, and athletic accessories market segments. This limited type of house
mark use at consumer-facing web sites could serve to show that consumers could
encounter sports bras and armbands adapted for mobile phones in circumstances
which would lead to a likelihood of confusion. Moreover, the evidence from the Sweaty
Betty website showing a woman wearing both a sports bra and a Sweaty Betty “media
armband” is persuasive.14 On balance, we accord the Examining Attorney’s Internet
website evidence of relatively less probative value rather than discounting it in its
entirety.
2. Third-Party Registrations
In turn, Applicant introduced ten pairs of unrelated third-party registrations15 for
marks through which sports bras and armbands adapted for mobile phones are

14 See July 30, 2019 Final Office Action at p. 42, located at
www.sweatybetty.com/us/shop/accessories/media-armband-SB4250_Black.html.
15 Jan. 29, 2020 Request for Reconsideration After Final Action at pp. 15-16, 20-110.
Applicant included one third-party application that has been abandoned
(GLITTER TIGER, Serial No. 88064941). An application is only evidence that the application
was filed on a particular date. In re Inn at St. John’s, 126 USPQ2d at 1745 (citations omitted).
Serial No. 88172627

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offered, contending that the registrations “demonstrate that nearly identical or very
similar marks, held by unrelated third-parties, routinely coexist peacefully for sports
bras and armbands adapted for mobile phones… .”16
Prior decisions and actions of other examining attorneys in registering other
marks have little evidentiary value and are not binding upon the USPTO or the
Trademark Trial and Appeal Board. In re Midwest Gaming & Entm’t,
106 USPQ2d 1163, 1165 n.3 (TTAB 2013) (citing In re Nett Designs, Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)); TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 1207.01(d)(vi) (October 2018). Each case is decided
on its own facts, and each mark stands on its own merits. See AMF Inc. v. Am. Leisure
Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Binion,
93 USPQ2d 1531, 1536 (TTAB 2009). Applicant’s third-party registration pairings
are “not evidence that the registered marks are actually in use or that the public is
familiar with them.” In re Midwest Gaming & Entm’t, 106 USPQ2d at 1167 n.5 (citing
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010));

Moreover, the application is abandoned. So that application and registration pair has not
been considered.
Applicant also included one third-party registration that was registered under Section 66(a)
of the Trademark Act, 15 U.S.C. § 1141f(a) ( , Reg. No. 3,825,393). A third-party
registration that is not based on use in commerce, such as one registered under Section 66(a),
or one registered solely under Section 44 of the Trademark Act, 15 U.S.C. §1126(e), and for
which no Section 8 or 71 affidavit or declaration of continuing use has been filed, has very
little, if any, persuasive value. See Calypso Tech., Inc. v. Calypso Capital Mgmt., LP,
100 USPQ2d 1213, 1221 n.15 (TTAB 2011); In re 1st USA Realty Prof’ls, Inc.,
84 USPQ2d 1581, 1583 (TTAB 2007); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786
(TTAB 1993). So we have not considered that pair of registrations either.
16 Applicant’s Appeal Brief, 11 TTABVUE 19-20.
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see TMEP § 1207.01(d)(iii). Whatever probative value there is to Applicant’s list of
third-party registrations is weighed in conjunction with the Internet website evidence
submitted by the Examining Attorney. Cf. In re Thor Tech, Inc., 113 USPQ2d 1546,
1548 (TTAB 2015).
The facts here can be distinguished from those in Thor Tech. In that case,
applicant’s mark, TERRAIN, for “recreational vehicles, namely, towable trailers,”
was refused registration on the ground that applicant’s mark so resembled the cited
mark, TERRAIN, for “motor land vehicles, namely, trucks,” as to be likely to cause
confusion. Id. at 1546. The Examining Attorney proffered seven third-party
registrations of marks for goods including “trucks” and “trailers” as evidence that
those goods emanate from the same source. Id. at 1547. Upon closer inspection, we
found that five of the seven registrations were of no probative value since they were
for recreational vehicle towable trailers. Id. To rebut the Office’s evidence, the
applicant proffered fifty pairs of third-party registrations of identical or similar
marks for land motor vehicles and for towable recreational vehicle trailers. Id. at
1548-49. After evaluating the evidence, we reversed the refusal, reasoning that the
existence of fifty pairs of substantially identical marks for land motor vehicles and
for towable recreational vehicle trailers suggested that these goods were distinctive
in the marketplace, and confusion between even identical marks was unlikely. Id. at
1549. In addition, we found that purchasers of the goods would exercise a high degree
of care in making purchasing decisions because the goods were relatively expensive.
Id. at 1551.
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Here, we only have eight pairs of third-party registrations to consider, the
probative value of which depends entirely upon their usage. Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005)
(citation omitted). They are: AERO, Reg. No. 4,623,905 (armbands specifically
designed for and holders for cellular phones) and AERO FIT, Reg. No. 6,201,621
(moisture-wicking sports bras); COCO, Reg. No. 5,979,115 (armbands specially
adapted for personal electronic devices, namely, mobile phones) and COCOLICIOUS,
Reg. No. 4,782,135 (sports bras); DEFY LIMITS, Reg. No. 5,318,049 (armbands
especially adapted for personal electronic devices, namely, for holding cell phones)
and DEFY, Reg. No. 4,089,917 (sports bras); EMPOWER, Reg. No. 5,686,423
(armbands specially adapted for personal electronic devices, namely, mobile phones)
and EMPOWER POSTURECUE, Reg. No. 4,243,710 (sports bras); , 5,395,458
(armbands specially adapted for personal electronic devices, namely, mobile phones)
and , 5,175,029 (sports bras); THE ULTIMATE ARMBAND, 4,137,213 (armbands
specially designed for and holders for cellular phones) and ULTIMATE SPORTS
BRA, 5,352,384 (sports bras); POWER & CO., 5,464,870 (armbands specially adapted
for personal electronic devices, namely, smartphones) and POWER CORE, 3,152,082
(sport bras); SLIM-FIT, 4,492,791 (armbands that serve as carrying cases for portable
and handheld electronic devices, namely, mobile phones) and SLIMTEK, 5,862,269
(sports bras).
Although these third-party registrations are for the goods at issue (or very similar
ones), Applicant offered absolutely no evidence showing the extent to which these
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registrations are actually used in commerce, or consumers’ familiarity with them.
“[W]here the ‘record includes no evidence about the extent of [third-party] uses … [t]he
probative value of this evidence is thus minimal.” Id. (citing Han Beauty, Inc. v.
Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001));
see Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 462-63
(CCPA 1973) (“But in the absence of any evidence showing the extent of use of any of
[the third-party registrations] or whether any of them are now in use, they provide
no basis for saying that the marks so registered have had, or may have, any effect at
all on the public mind so as to have a bearing on likelihood of confusion. The
purchasing public is not aware of registrations reposing in the Patent Office and
though they are relevant, in themselves they have little evidentiary value on the issue
before us.”); see also In re Opus One Inc., 60 USPQ2d 1812, 1814 (TTAB 2001)
(citation omitted). In addition, none of the marks are similar in appearance to the
PUREMOVE marks at issue here, and there is no evidence of record establishing that
there is widespread use of PUREMOVE marks for armbands adapted for mobile
phones, which would make the registered mark weak and entitled to only a narrow
scope of protection. See Palm Bay Imps., 73 USPQ2d at 1693 (“Evidence of third-party
use of similar marks on similar goods is relevant to show that a mark is relatively
weak and entitled to only a narrow scope of protection.”).
Thus, Applicant’s third-party registration evidence is neutral, at best.
3. Relatedness Overall
In general, Applicant “acknowledges that runners wear sports bras and runners
wear armbands for mobile phones, and that Reebok itself sells both sports bras and
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armbands for mobile phones under its REEBOK house mark.”17 But, “there is no
evidence of record suggesting that consumers who purchase Reebok’s PUREMOVE
sports bras necessarily also purchase Reebok’s armbands for mobile phones. In fact,
there is no evidence of record demonstrating that Reebok markets its PUREMOVE
sports bras and armbands for mobile phones together.”18
Again, in order to find relatedness of the goods at issue, we only need to find that
news articles or third-party websites show that the relevant goods are used by
purchasers for the same purpose; advertisements show that the relevant goods are
advertised together; or that the record includes copies of use-based registrations of
the same mark for both Applicant’s identified goods and the goods listed in the cited
registration. See, e.g., In re Davia, 110 USPQ2d at 1817. And, the marks here are
identical so the goods need not be as close to support a finding of likelihood of
confusion. In re Shell Oil Co., 26 USPQ2d at 1689; In re Iolo Techs., 95 USPQ2d at
1499. We consider Internet web pages only for what they show on their face rather
than the truth of the matters asserted therein, but “such materials are frequently
competent to show, on their face, matters relevant to trademark claims (such as
public perception), regardless of whether the statements are true or false.” Harry
Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1427-28 (TTAB 2014);
see also In re Mr. Recipe, LLC, 118 USPQ2d at 1087 n.4 (“Internet evidence is

17 Applicant’s Appeal Brief, 11 TTABVUE 15.
18 Id. at 16.
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generally admissible and may be considered for purposes of evaluating a trademark.”)
(citations omitted).
The Internet webpage evidence that we have considered shows that sports bras
and armbands adapted for mobile phones are frequently offered under the same
mark. The Sweaty Betty webpage featuring its Media Armband shows a woman
wearing both a sports bra and an armband adapted for a mobile phone, and at the
bottom of the webpage a Sweaty Betty Ultimate Sports Bra is offered for sale.19
Applicant even “acknowledges that runners wear sports bras and runners wear
armbands for their mobile phones, and that Reebok itself sells both sports bras and
armbands for mobile phones under its REEBOK house mark.”20 Based on this
evidence, we find that sports bras and armbands for mobile phones, which can be
worn simultaneously, are of great utility to female consumers who engage in athletic
pursuits, including running. These goods allow for freedom of movement, which
enhances a woman’s athletic activities and overall athletic experience. Consequently,
the Internet webpage evidence that we have considered—although less probative
because it also features house marks that are used in the fields of sportswear, athletic
apparel, and athletic accessories—is more persuasive than Applicant’s third-party
registration evidence, and still persuades us that sports bras and “armbands specially

19 See Nov. 17, 2018 Office Action at pp. 17; July 30, 2019 Final Office Action at pp. 42-43.
We note that other Internet website evidence proffered by the Examining Attorney also shows
a model wearing a sports bra and an armband adapted for mobile phones at the same time,
but since that evidence is from the websites of mass retailers, it has little probative value.
20 Applicant’s Appeal Brief, 11 TTABVUE 16.
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adapted for personal electronic devices, namely, mobile phones” are related,
particularly when identified by identical marks.
This DuPont factor tilts in favor of a finding of likelihood of confusion.
C. Channels of Trade
There are no limitations as to trade channels or classes of purchasers in the
application or cited registration, so it is presumed that the application and
registration encompass all goods of the type described, that the goods move in all
normal trade channels for those goods, and that the goods are available to all classes
of purchasers. In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992); In re Elbaum,
211 USPQ 639, 640 (TTAB 1981). We find the Internet website evidence discussed
above, although less persuasive, still shows that sports bras and armbands adapted
for mobile phones travel in the same trade channels. This DuPont factor weighs in
favor of likelihood of confusion.
D. Degree of Consumer Care
Finally, even though the Examining Attorney and the applicant did not make any
arguments or present any evidence about the degree of consumer care, the Internet
website evidence proffered by the Examining Attorney shows that sports bras and
armbands adapted for mobile phones are widely available, inexpensive items. For
example, Applicant’s Reebok OS Run Media Armband offered at reebok.com is
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$30.00,21 the Reebok Puremove Bra offered at reebok.com is $60.00,22 the Puma
Running Phone Armband at us.puma.com is $27.00,23 Puma sports bras at
us.puma.com range in price from $28.00 to $50.00,24 the Mizuno Exercise Arm Band
Case is $18.00 at Mizuno.com,25 the Mizuno Women’s Alpha Bra offered at
Mizuno.com is $35.00,26 the Sweaty Betty Media Armband at sweatybetty.com is
$30.00,27 and the Ultimate Sports Bra, also at sweatybetty.com, is $37.00.28 From this
evidence, we infer that purchasers of both sports bras and armbands adapted for
mobile phones would exercise a lesser degree of care in making their purchasing
decisions, even though sports bras and armbands adapted for mobile phones may be
purchased by consumers generally interested in exercise and physical fitness;
although particular consumers may be sophisticated, that does not mean they are
immune from source confusion. In re Decombe, 9 USPQ2d 1812, 1814-15
(TTAB 1988). Therefore, we find that the lesser degree of consumer care that
consumers would exercise when purchasing these goods weighs in favor of a
likelihood of confusion. Cf. In re Thor Tech, 113 USPQ2d at 1551 (although neither
the applicant nor the examining attorney presented evidence regarding the degree of

21 Nov. 17, 2018 Office Action at pp. 48-49.
22 Id. at p. 50.
23 Id. at pp. 32-33.
24 Id. at pp. 34-38.
25 July 30, 2019 Office Action at p. 19.
26 Id. at p. 21.
27 Id. at p. 42.
28 Id. at p. 43.
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consumer care, the Board used evidence in the record to find that purchasers would
exercise a high degree of care in making decisions to purchase trucks and recreational
vehicle towable trailers).
IV. Conclusion
After considering all of the evidence of record as it pertains to the relevant DuPont
factors, even if not specifically discussed herein, we find that confusion is likely. The
marks are identical, the goods are related, the channels of trade overlap, and
consumers would exercise a lesser degree of care when purchasing the goods at issue.
Decision: The refusal to register Applicant’s Mark, PUREMOVE, is affirmed.