The Sunrider Corporationv.Shoban Lal Jain

Trademark Trial and Appeal Board

Oct 15, 2009

No. 91176135 (T.T.A.B. Oct. 15, 2009)

Mailed:
Oct. 15, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

The Sunrider Corporation
v.
Shoban Lal Jain
_____

Opposition No. 91176135
to application Serial No. 78911246
filed on June 19, 2006
_____

Burton S. Ehrlich of Ladas & Parry LLP for The Sunrider
Corporation.

John S. Egbert of Egbert Law Offices for Shoban Lal Jain.
______

Before Walters, Bucher and Grendel, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

INTRODUCTION
Shoban Lal Jain, an individual citizen of India,
(applicant) seeks registration on the Principal Register of
the mark OLINA (in standard character form) for goods
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91176135
2
identified in the application as “body and beauty care
cosmetics and bleaching preparation for cosmetic purposes.”1
The Sunrider Corporation (opposer) filed a notice of
opposition to registration of applicant’s mark, asserting
Section 2(d), 15 U.S.C. §1052(d), as its ground of
opposition.2 Specifically, opposer claims that applicant’s
mark, as applied to the goods identified in the application,
so resembles opposer’s mark OI-LIN, previously registered on
the Principal Register (in standard character form) for
goods identified in the registration as “skin care creams,
gels, and firming and toning preparations,”3 as to be likely
to cause confusion, to cause mistake, or to deceive.
Applicant filed an answer by which he denied the
salient allegations of the notice of opposition.
Both parties presented evidence at trial. The case is
fully briefed.
After careful consideration of the evidence of record
and the arguments of counsel, we sustain the notice of
opposition.

1 Serial No. 78911246, filed on June 19, 2006. The application
is based on applicant’s asserted bona fide intent to use the mark
in commerce. Trademark Act Section 1(b), 15 U.S.C. §1051(b).

2 Opposer also alleged a dilution claim in the notice of
opposition, but has presented no arguments in support of that
claim in its briefs. We therefore deem opposer to have waived
that claim.

3 Registration No. 1967942, issued on April 16, 1996. Section 8
affidavit accepted; Section 15 affidavit acknowledged. Renewed.

Opposition No. 91176135
3
OPPOSER’S MOTION TO STRIKE IS GRANTED
The Board, in its September 4, 2008 order, deferred
decision on opposer’s motion to strike Exhibit 6 of
applicant’s April 24, 2008 second notice of reliance4 until
final decision. We now grant the motion to strike.
In its Exhibit 6, applicant, under Trademark Rule
2.120(j)(5), 37 C.F.R. §2.120(j)(5),5 seeks to introduce

4 Applicant filed its second notice of reliance on March 28,
2008. On April 9, 2008, opposer filed a motion to strike certain
portions of the notice of reliance (including Exh. 6). On April
24, 2008, applicant filed a response to the motion to strike, to
which he attached an amended second notice of reliance which,
according to applicant, addressed the issues raised by opposer’s
motion to strike. Our references herein to applicant’s second
notice of reliance shall be to the April 24, 2008 amended second
notice of reliance.

5 Trademark Rule 2.120(j)(5) provides:

Written disclosures, an answer to an interrogatory, or
an admission to a request for admission, may be
submitted and made part of the record only by the
receiving or inquiring party except that, if fewer than
all of the written disclosures, answers to
interrogatories, or fewer than all of the admissions,
are offered in evidence by the receiving or inquiring
party, the disclosing or responding party may introduce
under a notice of reliance any other written
disclosures, answers to interrogatories, or any other
admissions, which should in fairness be considered so as
to make not misleading what was offered by the receiving
or inquiring party. The notice of reliance filed by the
disclosing or responding party must be supported by a
written statement explaining why the disclosing or
responding party needs to rely upon each of the
additional written disclosures or discovery responses
listed in the disclosing or responding party’s notice,
and absent such statement the Board, in its discretion,
may refuse to consider the additional written
disclosures or responses.

See generally Hiraga v. Arena, 90 USPQ2d 1102, 1105-06 (TTAB
2009); Quality Candy Shoppes/Buddy Squirrel of Wisconsin Inc. v.
Grande Foods, 90 USPQ2d 1389, 1392 (TTAB 2007); Carl Karcher
Enterprises Inc. v. Stars Restaurants Corp., 24 USPQ2d 1125,
Opposition No. 91176135
4
certain of his answers to opposer’s interrogatories (Nos. 1,
3, 11-12 and 24-25) which, according to applicant, in
fairness should be considered so as to make not misleading
other of applicant’s interrogatory responses which opposer
made of record by notice of reliance during opposer’s
testimony period. Applicant asserts in the second notice of
reliance (at p. 2-3) and in his April 24, 2008 brief in
opposition to opposer’s motion to strike (at p. 3) that
“[s]ince the Interrogatory responses selected by Opposer are
specific to the mark within the United States, and
Applicant’s mark is an intent to use application, Opposer’s
selections are misleading in that they do not show
information related to Applicant and how the OLINA mark has
been used elsewhere in the world.”
Before we reach the specific interrogatory answers
applicant seeks to introduce pursuant to Trademark Rule
2.120(j)(5), we note generally that “[i]t is well settled
that activity outside the United States does not create
rights in marks within the United States.” Linville v.
Rivard, 41 USPQ2d 1731, 1736 (TTAB 1996), aff’d, 133 F.3d
1446, 45 USPQ2d 1374 (Fed. Cir. 1998). Applicant appears to
have recognized this principle when he specifically objected

1127-28 (TTAB 1995); Heaton Enterprises of Nevada Inc. v. Lang, 7
USPQ2d 1842, 1844 n.5 (TTAB 1988); Trademark Trial and Appeal
Board Manual of Procedure (TBMP) §704.10 (2d ed. Rev. 2004).

Opposition No. 91176135
5
in his responses to the interrogatories at issue that the
interrogatories are “overly broad and not likely to lead to
admissible evidence inasmuch as the scope is not limited to
the United States.” In light of these objections and the
well-settled case law, we find that applicant’s stated
rationale for his argument under Trademark Rule 2.120(j)(5),
i.e., that his answers to the additional interrogatories
should be considered because the interrogatories selected by
opposer do not cover “information related to Applicant and
how the OLINA mark has been used elsewhere in the world,” is
disingenuous at best.
We turn to the specific interrogatories at issue. In
his answers to opposer’s interrogatory nos. 1, 11, and 12,
applicant proffered information as to applicant’s use of the
mark outside the United States. Applicant contends in his
second notice of reliance that these answers in fairness
should be considered in order to provide context for his
answers to certain interrogatories relied upon by opposer in
its notice of reliance which pertain to use of the mark
solely in the United States, i.e., interrogatory nos. 15
(intended U.S. trade channels), 17 (intended classes of
purchasers), 18 (advertising expenditures), 19 (advertising
expenditures), and 23 (manner of use of the mark on
packaging and advertisements). However, as discussed above,
applicant’s use of the mark outside the United States is
Opposition No. 91176135
6
irrelevant to this proceeding, and these interrogatory
answers likewise are irrelevant. They would provide no
necessary context for applicant’s responses to the
interrogatories upon which opposer relies in its notice of
reliance, as required by Trademark Rule 2.120(j)(5).
Applicant’s answers to opposer’s interrogatory nos. 1, 11
and 12 in Exh. 6 to his second notice of reliance are hereby
stricken.
In his answer to opposer’s interrogatory no. 3,
applicant identified the reasons for his adoption of his
mark and the mark’s intended meaning. Applicant argues that
consideration of this answer is necessary to provide context
for his answer to opposer’s interrogatory no. 23, in which
opposer asked applicant to “describe the manner of use of
Applicant’s Mark on any packaging, and in advertising and
promotion,” to which applicant answered, subject to
objections, “Applicant has yet to commence use of the mark
in the United States.” We find that applicant’s answer to
interrogatory no. 3 pertaining to the adoption and meaning
of his mark is wholly irrelevant to, and would provide no
necessary context for, applicant’s answer to opposer’s
interrogatory no. 23 nor to any other of opposer’s selected
interrogatories, as required by Trademark Rule 2.120(j)(5).
The information contained in applicant’s answer to opposer’s
interrogatory no. 3 regarding applicant’s adoption and
Opposition No. 91176135
7
intended meaning of his mark may not be made of record in
this case by means of Trademark Rule 2.120(j)(5). The
answer to interrogatory no. 3 in Exh. 6 to the second notice
of reliance is hereby stricken.
In his answer to opposer’s interrogatory no. 24,
applicant states that he has neither asserted any objection
against nor received any objection from any third party in
the United States pertaining to his mark. In his answer to
opposer’s interrogatory no. 25, applicant provides
information regarding the chain of title to applicant’s mark
in India. Applicant argues that “[t]hese answers will help
to clarify and explain all of the Interrogatory answers
selected by Opposer since Applicant’s mark has not been used
in the United States.” (Applicant’s second notice of
reliance at 3.) We find, however, that neither of these
interrogatory answers is relevant to, and would not provide
context for, any, much less all, of the interrogatory
answers upon which opposer has relied in its notice of
reliance. The information contained in applicant’s answers
to opposer’s interrogatory nos. 24-25 may not be made of
record by means of Trademark Rule 2.120(j)(5).6 The answers
to interrogatory nos. 24-25 in Exh. 6 to applicant’s second
notice of reliance are hereby stricken.

6 Moreover, applicant’s response to interrogatory no. 5 regarding
the chain of title to applicant’s mark in India is irrelevant to
this proceeding.
Opposition No. 91176135
8
For these reasons, opposer’s motion to strike Exh. 6 to
applicant’s second notice of reliance, consisting of
applicant’s answers to opposer’s interrogatory nos. 1, 3,
11-12 and 24-25, is granted. This evidence is stricken and
shall be given no consideration.7
THE EVIDENCE OF RECORD
By rule, the evidence of record includes the file of
applicant’s opposed application and the pleadings herein.
At trial, opposer submitted: its January 17, 2008
notice of reliance on a status and title copy of its pleaded
registration; its January 17, 2008 notice of reliance on
certain of applicant’s responses to opposer’s
interrogatories and requests for admissions; and its January
17, 2008 notice of reliance on certain pages from opposer’s
website consisting essentially of an online catalog of
opposer’s goods. Opposer also submitted the January 9, 2008
testimony deposition of opposer’s vice-president Wendy Teng,
and Exh. Nos. 1-75 thereto.
At trial, applicant submitted his March 28, 2008 first
notice of reliance on opposer’s “Independent Business Owner
Agreement” and “Business Guide” (confidential Exh. 1);
excerpts from an online business dictionary
(www.businessdictionary.com) defining “direct selling” and

7 We note that our decision in this case would be the same even
had these interrogatory answers been considered.

Opposition No. 91176135
9
“network marketing,” selected pages from opposer’s website
regarding opposer’s business model, and a copy of an online
article regarding multilevel marketing (Exh. 2); opposer’s
answers to applicant’s interrogatories (Exh. 3); opposer’s
answers to applicant’s requests for admissions (Exh. 4); and
a printout of a January 7, 1997 Wall Street Journal article
regarding opposer’s business (Exh. 5A).8
Applicant with his trial brief also has submitted
numerous dictionary excerpts offered to show the
pronunciation of various words, and has requested that we
take judicial notice thereof. Opposer in its reply brief
has objected on the ground that there is no authority for
our taking judicial notice of dictionary evidence pertaining
to the pronunciation of words (as opposed to the definitions
of words), and that applicant’s proposed evidence is
unreliable, irrelevant, untimely and prejudicial. It is
settled that the Board may take judicial notice of
dictionary definitions. See University of Notre Dame du Lac
v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); Fed. R.
Evid. 201. Despite opposer’s objections, we see no reason

8 In its order dated September 4, 2008, the Board denied
opposer’s motion to strike Exh. 5A (the Wall Street Journal
article), and granted opposer’s motion to strike Exh. 7 to
applicant’s notice of reliance, which consisted of copies of
applicant’s foreign trademark registration and related documents.
As discussed above, we now have granted opposer’s motion to
Opposition No. 91176135
10
not to also take judicial notice in this case of dictionary
excerpts pertaining to the pronunciation of words. We
therefore grant applicant’s request for judicial notice and
shall give this dictionary evidence whatever probative value
it may be entitled to.
STANDING AND SECTION 2(d) PRIORITY
Because opposer has properly made its pleaded
registration of record, we find that opposer has established
its standing to oppose registration of applicant’s mark.
See Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982); see also Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000).
Moreover, because opposer’s pleaded registration is of
record, Section 2(d) priority is not an issue in this case
as to the mark and goods covered by that registration. See
King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974).
LIKELIHOOD OF CONFUSION
Our likelihood of confusion determination under Section
2(d) is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue (the du Pont factors). See In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also Palm Bay Imports, Inc. v. Veuve Clicquot

strike Exh. 6 to applicant’s notice of reliance (certain of
Opposition No. 91176135
11
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005); In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997). In each case, we need consider and weigh only those
factors as to which there is pertinent evidence of record.
See In re Majestic Distilling Co., 315 F.3d at 1315, 65
USPQ2d at 1204 (“Not all of the DuPont factors may be
relevant or of equal weight in a given case, and ‘any one of
the factors may control a particular case,’” quoting In re
Dixie Restaurants, Inc., 105 F.3d at 1406-07, 41 USPQ2d at
1533; In re National Novice Hockey League, Inc., 222 USPQ
638 (TTAB 1984).
To review, applicant seeks registration of the mark
OLINA (in standard character form) for goods identified in
the application as “body and beauty care cosmetics and
bleaching preparation for cosmetic purposes.” Opposer
relies on its registration of the mark OI-LIN (in standard
character form) for goods identified in the registration as
“skin care creams, gels, and firming and toning
preparations.”
We begin with the second du Pont factor, which requires
us to determine the similarity or dissimilarity of the goods
as identified in applicant’s application and in opposer’s

applicant’s interrogatory answers).
Opposition No. 91176135
12
relied-upon registration, respectively. “Likelihood of
confusion may be found based on any item that comes within
the identification of goods in the involved application and
registration.” In re La Peregrina Ltd., 86 USPQ2d 1645,
1647 (TTAB 2008). In comparing the goods identified in the
application and in the cited registration, respectively,
“... it is the identification of goods that controls, not
what extrinsic evidence may show about the specific nature
of the goods. ... An applicant may not restrict the scope
of the goods covered in the cited registration by argument
or extrinsic evidence.” Id., 86 USPQ2d at 1646.
It is settled that it is not necessary that the
respective goods be identical or even competitive in order
to find that they are related for purposes of our likelihood
of confusion analysis. That is, the issue is not whether
consumers would confuse the goods themselves, but rather
whether they would be confused as to the source of the
goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The
goods need only be sufficiently related that consumers would
be likely to assume, upon encountering the goods under
similar marks, that the goods originate from, are sponsored
or authorized by, or are otherwise connected to the same
source. See In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re Melville
Opposition No. 91176135
13
Corp., 18 USPQ2d 1386 (TTAB 1991); and In re International
Telephone & Telegraph Corp., 197 USPQ 910 (TTAB 1978).
In this case, we find that the goods broadly identified
in applicant’s application as “body and beauty care
cosmetics” are closely related to and indeed encompass and
therefore are legally identical to the goods identified in
opposer’s registration as “skin care creams, gels, and
firming and toning preparations.” We therefore find that
the second du Pont factor weighs in favor of a finding of
likelihood of confusion in this case. Applicant does not
contend otherwise.
We turn next to the third du Pont factor, under which
we consider evidence pertaining to the similarity or
dissimilarity of the trade channels in which applicant’s
goods and opposer’s goods, as identified in the application
and registration, respectively, are or would be marketed.
Applicant argues that the evidence of record, specifically,
opposer’s Independent Business Owner Agreement and Business
Guide (applicant’s confidential first notice of reliance,
Exh. 1), the Wall Street Journal article about opposer and
opposer’s business model (applicant’s second notice of
reliance, Exh. 5A), and excerpts from opposer’s website
(applicant’s second notice of reliance, Exh. 2B), shows that
opposer operates as a multi-level-marketing/network
marketing business, marketing its goods by means of a tiered
Opposition No. 91176135
14
network of independent business owners.9 Applicant argues
that, in contrast, “Applicant’s goods are intended to be
sold in retail stores in the United States and would never
travel in the same channels of trade as Opposer. For this
reason, the respective consumers are unlikely to encounter
the goods of both Applicant and Opposer at the same time,
location, or event. It is clear that the respective goods
serve entirely different markets and functions.”
(Applicant’s brief at 13).
Applicant’s argument is unavailing. Neither the
identification of goods in applicant’s application nor the
identification of goods in opposer’s registration is limited
or restricted as to trade channels. We therefore presume
that the parties’ goods, as identified, are or could be
marketed in all normal trade channels and to all normal
classes of purchasers for such goods, regardless of what the
evidence might show to be the parties’ actual or intended
trade channels and purchasers. In re Elbaum, 211 USPQ 639
(TTAB 1981). Moreover, to the extent that applicant’s goods

9 The excerpt from businessdictionary.com (applicant’s second
notice of reliance, Exh. 2A) defines “network marketing” in
pertinent part as:

Direct selling method in which independent agents serve
as distributors of goods and services, and are encouraged
to build and manage their own sales force by recruiting
and training other independent agents. In this method,
commission is earned on the agent’s own sales revenue, as
well as on the sales revenue of the sales force recruited
by the agent and his or her recruits (called downline).
Also called multilevel marketing (MLM)...
Opposition No. 91176135
15
as identified in the application are legally identical to
opposer’s goods as identified in its registration (see
above), we presume that the parties’ goods likewise are or
will be marketed in the same trade channels and to the same
purchasers. In re Smith & Mehaffey, 31 USPQ2d 1531 (TTAB
1994).
For these reasons, we find that the third du Pont
factor weighs in favor of a finding of likelihood of
confusion in this case.
Next, under the fourth du Pont factor (conditions of
purchase), we find that the cosmetic products as identified
in applicant’s application and in opposer’s registration, by
their very nature, are or would include ordinary,
inexpensive consumer items purchased by ordinary consumers
exercising only a normal degree of care. We find that the
fourth du Pont factor accordingly weighs in favor of a
finding of likelihood of confusion in this case.
We turn finally to the first du Pont factor, which
requires us to determine the similarity or dissimilarity of
the marks when viewed in their entireties in terms of
appearance, sound, connotation and commercial impression.
Palm Bay Imports, Inc., supra. The test, under the first du
Pont factor, 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
Opposition No. 91176135
16
overall commercial impression that confusion as to the
source of the goods offered under the respective marks is
likely to result. The focus is on the recollection of the
average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Finally, in cases such as this, where the applicant’s goods
are legally identical to the opposer’s goods, the degree of
similarity between the marks which is required to support a
finding of likelihood of confusion declines. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992).
In terms of appearance, we find that applicant’s mark
OLINA and opposer’s mark OI-LIN, although not identical, are
quite similar. Both marks have five letters, and share four
of them. Both marks begin with the letter “O” and both have
the consecutive letters “LIN.” It is well-settled that
marks can be confusingly similar in appearance despite the
addition, deletion or substitution of letters. See, e.g.,
Hercules Inc. v. National Patent Development Corp., 524 F.2D
1227, 187 USPQ 668 (CCPA 1975)(HYDROLYN found to be visually
similar to HYDRON); The Russell Chemical Co. v. Wyandotte
Chemicals Corp., 337 F.2d 660, 143 USPQ 252 (CCPA
1964)(SENTOL similar to SEN-TROL); Brown Shoe Co. v.
Robbins, 90 USPQ2d 1752 (TTAB 2009)(PALOMITA similar to
Opposition No. 91176135
17
PALOMA); Alfacell Corp. v. Anticancer Inc., 71 USPQ2d 1301
(TTAB 2004)(ONCASE similar to ONCONASE); Hercules Inc. v.
National Starch and Chemical Corp., 223 USPQ 1244 (TTAB
1984)(NATROSOL similar to NATROL); Haveg Industries, Inc. v.
Shell Oil Co., 199 USPQ 618 (TTAB 1978)(ELEXAR similar to
EXAR); Amoco Oil Co. v. Amerco, Inc., 192 USPQ 729 (TTAB
1976)(AMERCO similar to AMOCO); In re BASF A.G., 189 USPQ
424 (TTAB 1975)(LUTEXAL similar to LUTEX); and Catalin Corp.
of America v. Flavor Corp. of America, 149 USPQ 701 (TTAB
1966)(CATALYSIN similar to CATALIN).
Nor does the presence of the hyphen in opposer’s mark
suffice to distinguish the marks in terms of appearance when
they are considered in their entireties. See, e.g., The
Russell Chemical Co. v. Wyandotte Chemicals Corp., supra
(SEN-TROL similar in appearance to SENTOL); and The Black
and Decker Mfg. Co. v. Big Yank Corp., 231 USPQ 484 (TTAB
1986)(WORKMATE similar in appearance to WORK-MATES).
Viewing the marks OI-LIN and OLINA in their entireties
in terms of appearance, we find that the points of
similarity between the marks outweigh the points of
dissimilarity. The marks might be distinguishable in terms
of appearance when viewed carefully side-by-side, but, as
noted above, that is not the test. We find that the marks
are similar in terms of appearance, for purposes of the
first du Pont factor.
Opposition No. 91176135
18
Comparing the marks in terms of sound, we again find
them to be similar, even though not identical. Applicant
has argued extensively that the marks are dissimilar because
they would be pronounced differently. First, applicant
contends, the “OI” with which opposer’s mark begins would be
pronounced “OY” as in “boy,” while the “O” at the beginning
of applicant’s mark would be pronounced as a long “O.”
Applicant further contends, based on his dictionary
evidence, that the “LIN” in opposer’s mark would be
pronounced “LYNN,” as in the words “violin,” “maudlin,” and
“goblin,” while the “LIN” in applicant’s mark would be
pronounced “LEAN” due to the addition of the letter “A,” as
in the words “semolina” and “violina.” Thus, applicant
contends, opposer’s mark would be pronounced “OY-LYNN,” and
applicant’s mark would be pronounced “O-LEAN-A.” Applicant
also contends, alternatively, that its mark OLINA could be
pronounced with a long “I,” as in “Carolina.”
Applicant’s arguments regarding these different or
potentially different pronunciations of the two marks are
unavailing, however. It is well-settled that there is no
“correct” pronunciation of a trademark because it is
impossible to predict how the public will pronounce a
particular mark. Therefore, a supposedly “correct”
pronunciation of a mark cannot be relied on as a basis for
finding two marks to be dissimilar in terms of sound. See,
Opposition No. 91176135
19
e.g., Centraz Industries Inc. v. Spartan Chemical Co. Inc.,
77 USPQ2d 1698, 1701 (TTAB 2006)(ISHINE found to be
phonetically similar to ICE SHINE); Interlego AG v.
Abrams/Gentile Entertainment Inc., 63 USPQ2d 1862 (TTAB
2002)(MEGO found to be phonetically similar to LEGO);
Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461
(TTAB 1985)(SEYCOS found to be phonetically similar to
SEIKO); and In re Energy Telecommunications & Electrical
Ass’n, 222 USPQ 350 (TTAB 1983)(ENTELEC found to be
phonetically similar to INTELECT).
There being no “correct” pronunciation of the parties’
marks, we find that the “lin” syllable in both marks might
reasonably be pronounced in the same or at least a similar
manner in both marks. Specifically, the “lin” in
applicant’s mark might reasonably be pronounced as “lynn”
notwithstanding the “a” following it. Certainly, we cannot
find that purchasers speaking, hearing or recollecting the
marks necessarily would not be likely to confuse them in
terms of pronunciation.
Moreover, even if we accept applicant’s contention that
opposer’s mark necessarily would be pronounced “OY-LYNN” and
applicant’s mark necessarily would be pronounced “O-LEAN-A”
or “O-LINE-A,” we still find the marks to be similar in
sound. Both marks commence with a syllable based on the
letter “o” followed by a syllable comprised of a vowel sound
Opposition No. 91176135
20
between the letters “l” and “n.” The third syllable in
applicant’s mark is an unstressed schwa syllable which does
not suffice to distinguish the marks phonetically. Further
with respect to the first syllables of the marks, i.e., the
“oi” as in “boil” sound in opposer’s mark and the long “o”
sound in applicant’s mark, we note that they are formed and
pronounced similarly to the extent that “oi” is a diphthong
which opens with a long “o” sound.10
For all of these reasons, we find that applicant’s mark
and opposer’s mark are phonetically similar when considered
in their entireties, for purposes of the first du Pont
factor.
We next compare the marks in terms of connotation and
overall commercial impression. The evidence establishes
opposer’s mark consists of the given name of opposer’s
president Oi-Lin Chen. (Teng Depo. at 16-17.) Applicant
argues that OI-LIN “has the look and feel of a given name,”
which is heightened by the presence of the hyphen and by the
fact that the mark is displayed on opposer’s product labels
in the manner of a signature. In contrast, applicant
argues, its mark OLINA has no such connotation or commercial

10 We take judicial notice that The American Heritage Dictionary
of the English Language (3d ed.) at p. 526 defines “diphthong”
as: “n. Linguistics. A complex speech sound or glide that
begins with one vowel and gradually changes to another vowel
within the same syllable, as (oi) in boil...”
Opposition No. 91176135
21
impression as a given name, and that it indeed has no
connotation at all.
We cannot find on this record that the average American
consumer encountering opposer’s mark would perceive or
assume OI-LIN to be a given name (or a surname). Applicant
has not presented any evidence showing that Oi-Lin is or
would be recognized as the given name (or the surname) of
anyone other than opposer’s president. Applicant has not
presented any evidence showing, based on the existence of
other recognized names, that OI-LIN has or would be
perceived as having even the structure of a given name (or a
surname). The manner in which opposer currently displays
the mark on its product labels is irrelevant here because
the mark is registered in standard character form, which
entitles opposer to display it in any reasonable manner, not
just the manner in which it is currently displayed. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842
(Fed. Cir. 2000).
We find on this record that OI-LIN would be perceived
by American consumers to be an entirely coined term. As
applicant contends, his mark OLINA also is likely to be
perceived as a coined term. As coined terms, the marks have
no different connotations by which consumers might
distinguish them.
Opposition No. 91176135
22
We also find that the marks create confusingly similar
overall commercial impressions, in that both would be
perceived simply as being five-letter coined terms of which
four of the letters are shared, including the beginning
letter “O” and the letters “LIN.” Given this fundamental
commonality between the marks and given the imperfect
recollection of the average consumer, we find that the marks
when considered in their entireties are similar in terms of
overall commercial impression.
In short, we find that applicant’s mark OLINA and
opposer’s mark OI-LIN are confusingly similar when
considered in their entireties in terms of appearance,
sound, connotation and overall commercial impression.
Significantly, and as noted above, because the parties’
goods are legally identical, the degree of similarity
between the marks which is necessary to support a finding of
likelihood of confusion declines. We find that applicant’s
mark is sufficiently similar to opposer’s mark that
confusion is likely to result from the use of the two marks
on identical goods. We find that the first du Pont factor
weighs in favor of a finding of likelihood of confusion in
this case.
Based on all of the evidence of record as it pertains
to the relevant du Pont factors, and for the reasons
discussed above, we find that a likelihood of confusion
Opposition No. 91176135
23
exists. We have considered all of applicant’s arguments to
the contrary (including any arguments not specifically
discussed in this opinion), but we are not persuaded
thereby. To the extent that any doubts might exist as to
the correctness of our likelihood of confusion conclusion,
we resolve such doubts against applicant. See Century 21
Real Estate Corp., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992); Ava Enterprises Inc. v. Audio Boss USA Inc., 77
USPQ2d 1783 (TTAB 2006); and Baseball America Inc. v.
Powerplay Sports Ltd., 71 USPQ2d 1844 (TTAB 2004).

Decision: The opposition is sustained.