88297323 (T.T.A.B. Aug. 10, 2021)

Viva 5, LLC

Trademark Trial and Appeal BoardAug 10, 2021

88297323 (T.T.A.B. Aug. 10, 2021)

This Opinion is not a Precedent of the TTAB Mailed: August 10, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Viva 5, LLC _____ Serial No. 88297323 _____ Mark C. Johnson of Johnson | Dalal, for Viva 5, LLC. Alexandria Bryant, Trademark Examining Attorney, Law Office 113, Myriah Habeeb, Managing Attorney. _____ Before Lykos, Kuczma and Greenbaum, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Viva 5, LLC (“Applicant”) seeks registration on the Principal Register of the mark HAPPY TAILS (in standard characters) for: Dietary pet supplements in the form of pet treats; Dietary supplements for pets; Dietary supplements for pets in the nature of a powdered drink mix; Feed supplements for animals and pets; Nutritional supplements for animals and pets, in International Class 5.1 1 Application Serial No. 88297323 was filed on February 11, 2019, based upon Applicant’s assertion of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). On April 21, 2021, a certificate of change of name of Applicant Viva 5 Corporation to Viva 5, LLC was recorded with the USPTO at Reel/Frame Serial No. 88297323 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. §2(d), citing Registration Nos. 2572764 for the mark HAPPY TAILS and design, displayed as , for “retail pet store services” in International Class 35,2 and 4760090 for the mark HAPPY TAILS for “pet treats” in International Class 31,3 both Registrations currently owned by HT Pet Products, LLC, as bars to registration. After the Examining Attorney made the refusal final, Applicant appealed and requested reconsideration. The request for reconsideration was denied, the appeal was resumed and Applicant and the Examining Attorney submitted briefs.4 For the reasons set forth below, the refusal to register is affirmed. 7265/0314-0320. Accordingly, on May 19, 2021 the caption of this appeal was updated to show Viva 5, LLC was substituted as the Applicant herein. Page references to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal refer to the Board’s TTABVUE docket system. 2 Registration No. 2572764, issued on May 28, 2002 and was renewed. The Registration includes the following lining and stippling statement: “The lining shown in the drawing is a feature of the mark and is not intended to indicate color.” Although there is no description of the mark, it appears to include the rear silhouettes of a dog and a cat in the middle of an oval double lined border. The word “HAPPY” appears in the upper portion of the border and the word “TAILS” appears in the lower portion of the border. 3 Registration No. 4760090, issued on June 23, 2015; Sections 8 & 15 Declaration of Use and Incontestability filed. 4 Applicant submitted copies of evidence submitted during prosecution with its Appeal Brief. Inasmuch as its Appeal Brief is associated with the application file, papers that are already in the application should not, as a matter of course, be resubmitted as exhibits to its Brief. In re Information Builders Inc., 2020 USPQ2d 10444, at *2 n.4 (TTAB 2020) (attaching previously submitted evidence to an appeal brief is unnecessary and impedes efficient Serial No. 88297323 - 3 - I. Likelihood of Confusion Our determination under § 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion enunciated in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973), 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). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re i.am.symbollic, 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)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). We have considered each DuPont factor for which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play disposition of the appeal by the Board; direct citation to evidence in the record is strongly preferred). Serial No. 88297323 - 4 - more or less weighty roles in any particular determination.”); see also Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered). A. Similarity of the Marks It is well settled that marks are compared in their entireties for similarities in appearance, sound, connotation and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, (Fed. Cir. 2019). Applicant’s HAPPY TAILS mark is identical in sound, appearance, connotation and commercial impression to the HAPPY TAILS mark in cited Registration No. 4760090. As to the mark shown in cited Registration No. 2572764, , while that mark features stylized lettering and a design, the word portion of it is more likely to be impressed upon a purchaser’s memory and to be used when referring to the pet store services for which it is registered. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, Serial No. 88297323 - 5 - 1596 (TTAB 1999); see also In re Viterra, 101 USPQ2d at 1908, 1911 (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1247 (TTAB 2010). Accordingly, the word portion of the cited mark, i.e., “HAPPY TAILS,” is more significant than its stylized lettering or character design. Additionally, the dog and cat design portion of this cited mark is suggestive, if not descriptive, of Applicant’s pet-related dietary and nutritional supplements, and is consistent with the message conveyed by Applicant’s mark HAPPY TAILS. Thus, the word portions of Applicant’s mark and the mark in Registration No. 2572764, , are identical in appearance, sound, connotation, and commercial impression with the addition of the design element enhancing the similarities between these marks. Therefore, Applicant’s mark HAPPY TAILS and the cited marks, HAPPY TAILS and , are similar in appearance, sound, connotation, and commercial impression, supporting a finding of likelihood of confusion and weighing heavily against Applicant. In re Shell Oil, 26 USPQ2d at 1688. B. Strength of Cited Marks Under the sixth DuPont factor, we consider evidence of third-party use of similar marks on similar goods. We assess the extent to which the cited marks’ strength may be attenuated by “[t]he number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567; In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d Serial No. 88297323 - 6 - 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). For likelihood of confusion purposes, a mark’s strength “varies along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). Evidence of extensive registration and use of a term by others for similar goods can be powerful evidence of the term’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136(Fed. Cir. 2015) (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)). If the evidence establishes that the consuming public is exposed to widespread third-party use of similar marks for similar goods, it “is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.” Palm Bay Imps. v. Veuve Clicquot, 73 USPQ2d at 1693. However, Applicant points to no evidence of third-party actual use, and instead relies only on third-party registrations. Third-party registration evidence goes not to the commercial strength of Registrant’s mark, but rather its conceptual strength. That is, “[u]se evidence may reflect commercial weakness, while third-party registration evidence that does not equate to proof of third-party use may bear on conceptual weakness if a term is commonly registered for similar goods or services.” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017) (citing Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976)). See also In re Serial No. 88297323 - 7 - Guild, 2020 USPQ2d 10279 *3 (“[E]vidence of third-party registrations is relevant to ‘show the sense in which . . . a mark is used in ordinary parlance.’”). Applicant argues that in addition to the two cited registered marks, “the term ‘HAPPY TAILS’ appears in Applicant’s mark and in at least 5 additional current registrations in multiple classes, 4 of which relate to pets.” While admitting the use of “HAPPY TAILS” “is not extremely diluted or weak,” Applicant contends that “the term is considered somewhat weak such that consumers ‘will not likely be confused by any two of the crowd,’ i.e., the Cited Marks are sufficiently different in the goods they offer that consumers would be able to distinguish between them.”5 Applicant submits the following five registrations in support6: Mark Reg. No. Owner Goods/Services HAPPY TAILS 5562014 Happy Tails Diaper Kits, LLC IC 005: Diaper kits comprised primarily of babies’ diapers, disposable baby diapers, moisturizing lotion, sunscreen, pre-moistened baby wipes, and plastic bags for disposing of baby diapers. 5 Applicant’s Brief p. 5 (6 TTABVUE 7). 6 See Exhibit A to Applicant’s September 25, 2019 Response to Office Action, TSDR 15-23; and November 13, 2020 Request for Reconsideration, TSDR 17-27. Serial No. 88297323 - 8 - 5496652 Happy Tails Tours LLC IC 041: Arranging and conducting guided hiking tours. 5498576 AGC, LLC IC 016: Greeting cards. 4345737 Johnson, Shelly IC 044: Dog grooming services. HAPPY TAILS 3545149 HT PET PRODUCTS, LLC IC 018: Animal carriers; cat scratching posts; mats and pads made of fabric for use with animal training. IC 020: Beds for household pets; dog kennels; pet cushions; portable beds for pets; portable kennels; pet crates. IC 028: Pet toys. Looking at these third-party registrations, Registration No. 5562014 (diaper kits including babies’ diapers and related goods), recites goods used in connection with caring for babies which are unrelated to Applicant’s and cited Registrant’s goods and services for pets and therefore, is not relevant. Registration No. 5498576 (greeting Serial No. 88297323 - 9 - cards) is for goods that are purchased and received by humans. Even if the greeting cards are targeted to humans who receive the cards on behalf of their pets, such goods are very different from the cited Registrant’s and Applicant’s goods which are ingested by pets. Inasmuch as the mark in Registration No. 5496652 contains the descriptive language “Canine Adventure Tours” for “arranging and conducting guided hiking tours,” we assume that those services relate to tours permitting guests to bring their canines. Such services are not closely related to the pet treats and retail pet store services of the cited Registrant or to Applicant’s dietary supplements for pets. Other than Registration No. 3545149, owned by the same owner as the two cited Registrations, for pet products including pet beds, pet carriers, and pet toys, there is just one more third-party registration, Registration No. 4345737, for dog grooming services. While dog grooming services are directed to the same consumers as Registrant’s pet store services, pet treats, and pet products, as well as Applicant’s dietary pet supplements, this single registration has little probative value, especially in the absence of evidence that the mark is in use on a commercial scale or that the public has become familiar with it. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016) (citing Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however, registration evidence may not be given any weight.”)); Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not aware of registrations reposing in the USPTO); In re Hub Distrib., Inc., 218 USPQ 284, 285 (TTAB 1983) (“third party registrations in this Office, absent evidence of actual use Serial No. 88297323 - 10 - of the marks [that are the] subject[s] of the third-party registrations, ... are entitled to little weight on the question of likelihood of confusion.”). Thus, this single third- party registration does not indicate dilution or weakness of “HAPPY TAILS” for such goods and services. It is a “considerable” or “extensive” number of third-party registrations that may well have, in the aggregate, evidentiary value. Jack Wolfskin v. New Millennium Sports, 116 USPQ2d at 1135-36; Juice Generation v. GS Enters., 115 USPQ2d at 1674. Here, Applicant has introduced only five additional registrations; three of which are for non-related goods or services. The remaining two registrations are for dog grooming services, and dog-related products including animal carriers, pet beds and pet toys, the latter registration owned by the same owner as the cited Registrations. On this record, Registrant’s HAPPY TAILS and HAPPY TAILS and design marks, registered for pet-related goods and services, including “pet treats,” are not so weak as to permit the registration of Applicant’s identical mark for use on its closely related “dietary pet supplements in the form of pet treats.” Moreover, even if Registrant’s marks containing the term “HAPPY TAILS” are deemed to be weak, they are still entitled to protection against registration by a subsequent user of a nearly identical mark for Applicant’s 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 FabFitFun, Inc., 127 USPQ2d 1670, 1676 (TTAB 2018) (citing China Healthways Inst., Inc. v. Wang, Serial No. 88297323 - 11 - 491 F.3d 1337, 83 USPQ2d 1123, 1125 (Fed. Cir. 2007)); In re Max Capital, 93 USPQ2d at 1246. Under the sixth DuPont factor, the third-party registration evidence does not support a finding that the cited marks are so weak or otherwise entitled to such a narrow scope of protection that Applicant’s mark is not likely to cause confusion. C. Similarity of Goods and Services, Channels of Trade and Classes of Customers We now turn to the second DuPont factor involving the similarity of the goods and services. The question of likelihood of confusion is determined based on the identification of the goods and services in the application and registrations at issue, not on extrinsic evidence of actual use. See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162 (quoting Octocom Sys. Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). Applicant’s goods include “dietary pet supplements in the form of pet treats” and related goods, while Registrant’s goods are pet treats. While the goods are not identical, they are both products pets consume; one for dietary reasons and the other for their eating pleasure or for behavioral training.7 Applicant’s and Registrant’s goods and services need not be identical, or even competitive, in order to find that they are related for purposes of our likelihood of confusion analysis. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010). It is enough that 7 See September 25, 2019 Response to Office Action at TSDR 12. Serial No. 88297323 - 12 - the goods and services are related in some manner or that some circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances that could give rise, because of the marks used or intended to be used therewith, to a mistaken belief that they emanate from, are sponsored or authorized by or are otherwise connected to the same source. See 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)); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); In re Uncle Sam Chem. Co., 229 USPQ 233, 235 (TTAB 1986). The issue, of course, is not whether customers would confuse the goods and services themselves, but rather whether there is a likelihood of confusion as to their source. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The Examining Attorney introduced the following evidence in support of the similarity between Applicant’s goods and Registrant’s goods and services. First, the Examining Attorney submitted online evidence showing several parties offering pet supplements, pet treats and on-line retail store services similar to the goods and services of Applicant and Registrant, under the same brand: Purina: offering pet supplements, pet treats, and retail store services8 Only Natural Pet: offering pet supplements, pet treats, and retail store services9 8 March 25, 2019 Office Action at TSDR 29-30, 34 offered on https://www.purina.com. 9 Id. at TSDR 19-22, 31 offered on https://www.onlynaturalpet.com. Serial No. 88297323 - 13 - Halo: offering pet supplements, pet treats, and retail store services10 Zesty Paws: offering pet supplements, pet treats, and retail store services11 VetriScience: offering pet supplements, pet treats, and retail store services12 Earth Animal: offering pet supplements, pet treats, and retail store services13 Dr. Mercola: offering pet supplements, pet treats, and retail store services14 Additionally, the Examining Attorney submitted evidence showing some parties sell nutritional supplements that are incorporated as part of pet treats: Overby Farm: offering pet treats and pet supplements (The original cherry dog treat . . . Supports healthy hips and joints. Very effective as a treat and works synergistically when fed with a Hip Flex join health supplements. Use Hip Bones for medium to large breeds and Hip Bones Jr. for small dog and training treats.)15 NaturVet: offering pet supplements and pet treats (advertises treats incorporating supplements: “calming dog treats,” “. . . Tasty soft chews that taste like a treat . . .”)16 Nutri-Vet: offering pet supplements, pet treats, and retail store services (“Veterinarian-formulated products to keep your pet healthy and happy.” . . . “This liver-flavored treat 10 Id. at TSDR 23-27, 32-33 offered on https://halopets.com. 11 May 13, 2020 Final Office Action at TSDR 50-55 offered on https://zestypaws.com. 12 Id. at TSDR 73-77 offered on https://www.vetriscience.com. 13 Id. at TSDR 90-95 offered on https://www.earth animal.com/. 14 Id. at TSDR 96-100 offered on https://shop.mercola .com/pages/pets-home. 15 Id. at TSDR 60-61, 63-64 offered on https://naturvet.com/product/overby-farm-hip. 16 Id. at TSDR 65-72 offered on https://naturvet.com/, https://www.amazon.com/Supplement- Veterinarian-formulated-supplement-NaturVet/, https://www.chewy.com/naturvet-quiet-mo ments-calming-aid/dp/3608. Plus, comments posted to the internet by purchasers refer to the products as “treats.” Serial No. 88297323 - 14 - is veterinarian formulated to provide the best joint supplement for dogs.”)17 Buddy and Lola: offering pet supplements, pet treats, and retail store services (“Probiotic Treats-we like to think of them as treats with benefits…the right combination of prebiotics and probiotics to support digestive regularity, address gas and bloating while supporting everyday digestive health. . . ”).18 In view of the foregoing, Applicant’s dietary supplements are related to Registrant’s pet treats. In further support of the similarity between Applicant’s and Registrant’s marks for dietary pet supplements and retail pet store services, the Examining Attorney submits copies of third-party registrations for marks registered for pet treats, pet supplements and retail store services featuring pet products and/or providing a website featuring information for consumers in the field of pet food and pet treats: Mark Registration No. Goods/Services HALO PURELY FOR PETS 2611979 Vitamin supplements for pets, food supplements for pets, multi-vitamin for cats and dogs, . . . Int’l Class 5 Pet food, namely, dog food, cat food, edible dog treats, edible cat treats, Int’l Class 31 Retail store, . . . and internet retail services featuring pet foods, nutritional supplements 17 Id. at TSDR 79-84 offered on https://nutri-vet.com. 18 Id. at TSDR 85-89 offered on https://www.buddyandlola.com. Serial No. 88297323 - 15 - Mark Registration No. Goods/Services for pets, pet treats, . . . Int’l Class 35 KEEP SNIFFING 4364581 Dietary supplements for pets Int’l Class 5 … Pet food, edible pet treats, and consumable pet chews Int’l Class 31 Providing a web site featuring information for consumers in the field of pet food and pet treats Int’l Class 35 PETCO 5269533 Vitamins for pets; dietary supplements for pets Int’l Class 5 … Foodstuffs for animals; dog food and edible dog treats; cat food and edible cat treats; . . . edible chews for animals; digestible chewing bones for dogs; . . . Int’l Class 31 Retail pet store services featuring pet supplies, …pet food, online store services featuring pet supplies, . . . , pet food, . . . Int’l Class 35 … UCKELE 5404525 . . . . . . Dietary supplements for pets in the nature of a Serial No. 88297323 - 16 - Mark Registration No. Goods/Services powdered drink mix; Dietary supplements for animals; . . . Dietary pet supplements in the form of pet treats; . . . Nutritional supplements in capsule form for dogs . . . Vitamins and dietary food supplements for animals . . . Int’l Class 5 . . . Consumable pet chews; Digestible teeth cleaning treats for dogs; Edible chews for animals; Edible chews for dogs; Edible dog treats; . . . Pet treats . . . Int’l Class 31 Retail on-line ordering services featuring . . . Canine Metabolic supplements, . . . pet foods, nutritional supplements for pets, pet treats, . . . Dog treats . . . Pet treats, . . . natural dog and cat foods, treats, vitamins, supplements, . . . Int’l Class 35 5515307 On-line retail store services featuring pet food, pet supplements, pet supplies and pet accessories Int’l Class 35 5577616 Nutritional supplements for pets Int’l Class 5 Pet treats and pet food Int’l Class 31 Serial No. 88297323 - 17 - Mark Registration No. Goods/Services Computerized online retail store, . . . , all featuring natural pet care products, pet food and nutritional products Int’l Class 35 5606137 Dietary pet supplements in the form of pet treats; Dietary supplements for pets; Vitamins for pets Int’l Class 5 On-line retail store services featuring pet related supplies and goods; . . . Int’l Class 35 5626044 Nutritional supplements for pets Int’l Class 5 Pet treats and pet food Int’l Class 31 Computerized online retail store, wholesale store, and mail order services, all featuring natural pet care products, pet food and nutritional products Int’l Class 35 AGELESS PAWS 5675034 Dietary pet supplements in the form of pet treats; Dietary supplements for pets; Feed supplements for pets Int’l Class 5 Pet treats Int’l Class 31 On-line retail store services featuring pet treats, dietary supplements for pets and Serial No. 88297323 - 18 - Mark Registration No. Goods/Services food supplements for pets Int’l Class 35 5675081 Dietary supplements for pets; Feed supplements for pets Int’l Class 5 Pet treats Int’l Class 31 On-line retail store services featuring pet treats, dietary supplements for pets and food supplements for pets Int’l Class 35 PUREFECT 5707816 . . . Dietary pet supplements in the form of pet treats; Dietary supplements for pets; . . . Nutritional supplements for pets and livestock . . . Int’l Class 5 Pet treats; Consumable pet chews; Edible organic pet treats for pets and livestock Int’l Class 31 Providing a website featuring information for consumers in the field of pet food, pet treats and pet toys for particular pet breeds; Providing consumer information in the field of animals and pets relating to pet products, pet treats and pet toys Int’l Class 35 … Serial No. 88297323 - 19 - Mark Registration No. Goods/Services 6022679 . . . Nutritional supplements for pets Int’l Class 5 Edible pet treats and edible pet food Int’l Class 31 On-line retail store services featuring pet products, pet food, and pet treats Int’l Class 35 . . . 6030797 Pet food nutraceuticals for use as a dietary supplement for pets; Pet food supplements, namely, dietary supplements for pets Int’l Class 5 Pet food; pet food, namely, flavored pet food toppers; . . . ; edible pet treats; Consumable pet chews; . . . pet snacks; . . . ; . . . Pet food sets, comprised of freeze-dried food, pet treats, and pet food supplements, sold as a unit; . . . Pet food containing a nutritional blend of food and supplements for pets; . . . ; Pet food supplements, namely, pet food containing dietary supplements; . . . Int’l Class 31 Serial No. 88297323 - 20 - Mark Registration No. Goods/Services Retail store services, . . . , and online retail store services featuring pet food, pet treats, pet supplements, and pet food flavoring; Providing consumer information in the field of pet food, pet treats, and pet products; . . . ; Providing a website featuring consumer information in the field of pet diet and pet nutrition; . . . Int’l Class 35 Although use-based third-party registrations alone are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless may have probative value to the extent they may serve to suggest that the goods and services are of a kind that emanate from a single source. In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). The use of the same or similar marks in connection with both products and retail- store services has been held likely to cause confusion where the evidence, as the evidence in this case, shows that the retail-store services feature the same type of products. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (“[W]e have held that confusion is likely where one party engages in retail services that sell goods of the type produced by the other party . . . .”); In re Serial No. 88297323 - 21 - Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S (stylized) for retail grocery and general merchandise store services and BIGGS and design for furniture likely to cause confusion); In re H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (CCPA 1961) (holding SEILER’S for catering services and SEILER’S for smoked and cured meats likely to cause confusion). Here, we find relatedness based on the fact that Registrant’s retail pet store services most likely feature the very goods identified in Applicant’s application. See In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1064 (Fed. Cir. 2003) (a mark for a brewpub related to a mark for beer); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002) (registration for “electronic transmission of data and documents via computer terminals” is closely related to a registration covering “facsimile machines, computers, and computer software”); In re Country Oven, Inc., 2019 USPQ2d 443903, at *12 (TTAB 2019) (use of identical marks for bread buns and retail bakery stores and shops likely to cause confusion); In re House Beer, LLC, 114 USPQ2d 1073, 1078 (TTAB 2015) (use of identical marks for beer and for retail store services featuring beer likely to cause confusion); In re Thomas, 79 USPQ2d 1021, 1024 (TTAB 2006) (“It is clear that consumers would be likely to believe that jewelry on the one hand and retail stores selling jewelry on the other emanate from or are sponsored by the same source if such goods and services are sold under the same or similar marks.”). Based on the evidence of the use and registration of the same marks for Applicant’s goods and Registrant’s goods and services, they are clearly related. Serial No. 88297323 - 22 - Turning to the third DuPont factor, we look to “the similarity or dissimilarity of established, likely-to-continue trade channels,” including the class(es) of customers. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161, citing DuPont, 177 USPQ at 567. Aside from the fact that there is no evidence supporting different customers for Applicant’s and Registrant’s goods, inasmuch as Applicant’s goods and Registrant’s goods in Registration No. 4760090 are related, and their trade channels and class(es) of customers are unrestricted, at least some of Applicant’s customers are part of the purchasing public for Registrant’s related goods. To the extent that Applicant’s and Registrant’s goods are offered to the general consuming public, the channels of trade and classes of purchasers overlap. Additionally, since there are no restrictions with respect to channels of trade or customers for either the goods in Applicant’s application or the retail pet store services in cited Registration No. 2572764 for the mark , customers will presume that their respective goods and services travel in all normal and usual channels of trade for those goods and services to all normal potential customers. In re i.am.symbolic, 123 USPQ2d at 1749; SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). Therefore, the trade channels for Applicant’s goods include retail pet stores such as those identified in Registrant’s Registration No. 2572764. The relevant class(es) of customers for Applicant’s goods and Registrant’s services also is the same, i.e., pet owners. Thus, Applicant’s goods are likely travel in the same trade channels to the same potential customers as Registrant’s retail pet Serial No. 88297323 - 23 - store services. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Where one party uses its mark on goods that are sold in retail stores that customarily vend those goods, it is clear that the trade channels and customers overlap. See, e.g., In re Country Oven, 2019 USPQ2d 443903 at 15 citing In re Hyper Shoppes (Ohio), 6 USPQ2d at 1026. Accordingly, the second and third DuPont factors weigh in favor of finding a likelihood of confusion. D. Customer Sophistication Applicant argues that the purchasers of dietary pet supplements and pet treats are not general consumers, but are sophisticated purchasers who take great care in purchasing such items and will therefore not be confused by the marks at issue. Even if customers of Applicant’s dietary pet supplements and Registrant’s pet treats and retail store services are considered to be sophisticated and discriminating, it is settled that even sophisticated purchasers are not immune from source confusion, especially in cases such as the present one involving identical and very similar marks and closely related goods and services. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers...are not infallible.”); see also In re Shell Oil, 26 USPQ2d at 1690 (indicating that “even sophisticated purchasers can be confused by very similar marks”). Here, the respective goods and services are related such that Serial No. 88297323 - 24 - even sophisticated customers could be led to the mistaken belief that they originate from the same source. E. Conclusion Inasmuch as the only wording included in Applicant’s mark and the cited marks is “HAPPY TAILS,” the marks’ wording is identical in sound, connotation and commercial impression. The design element in the registered mark in Registration No. 2572764, , reinforces the similarities between Applicant’s mark and that registered mark. Moreover, Applicant’s and Registrant’s marks are used on consumable goods for pets, i.e., dietary pet supplements in the form of pet treats and pet treats, and related retail services targeted for the pet market, which travel through the same trade channels and are purchased by the same class(es) of customers. Applicant’s customers are part of the general consuming public for Registrant’s goods and services. Therefore, customers with a general recollection of Registrant’s marks used in connection with its retail pet store services and pet treats, upon encountering Applicant’s related dietary pet supplements offered under a virtually identical mark, are likely to believe that Applicant’s goods are in some way associated with Registrant’s pet store services and goods. Accordingly, we find a likelihood of confusion between Applicant’s mark and the HAPPY TAILS and Serial No. 88297323 - 25 - marks in the cited Registrations (owned by the same owner) for their respective goods and services. Decision: The refusal to register Applicant’s mark HAPPY TAILS under § 2(d) of the Trademark Act is affirmed.