Cypher Retail LLC DBA Cypher

Trademark Trial and Appeal BoardAug 5, 2021

88799928 (T.T.A.B. Aug. 5, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: August 5, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Cypher Retail LLC _____ Serial No. 88799928 _____ Daniel A. Thomson of Emerson Thomson Bennett for Cypher Retail LLC. Robert A. Cohen, Trademark Examining Attorney, Law Office 103, Stacy Wahlberg, Managing Attorney. _____ Before Zervas, Larkin, and Lebow, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Cypher Retail LLC (“Applicant”) seeks registration on the Principal Register of the mark shown below for “On-line retail store services featuring hoodies, t-shirts, sweatshirts, pillows, mugs, phone cases, jewelry, and hats,” in International Class 35: Serial No. 88799928 - 2 - 1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the mark shown below, which is registered on the Principal Register for “Clothing, namely, t-shirts, hats,” in International Class 25, as to be likely, when used in connection with the services identified in the application, to cause confusion, to cause mistake, or to deceive. 2 1 Application Serial No. 88799928 was filed on February 17, 2020 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use of the mark and first use of the mark in commerce at least as early as September 10, 2019. The mark is described as consisting of “the word ‘CYPHER’, written in a stylized font, above the words ‘WHEN IT COMES TO STYLE’ followed by a circle, followed by ‘WRITE YOUR OWN CODE’ underneath.” 2 The cited Registration No. 4905477 issued on February 23, 2016. The mark is described as consisting of “the word ‘CYPHER’ in all caps labeled above double ‘C’ [sic] facing right with the numbers ‘360’ along with a degree symbol in the middle of the double ‘C’s.” Serial No. 88799928 - 3 - When the refusal was made final, Applicant appealed and requested reconsideration, which was denied. Applicant and the Examining Attorney have filed briefs.3 We affirm the refusal to register. I. Record on Appeal4 The record on appeal consists of Applicant’s specimen of use,5 USPTO electronic records regarding the cited registration,6 third-party websites of sellers of clothing,7 and third-party registrations of marks for clothing and various retail store services featuring clothing.8 II. Analysis of Refusal Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). Our determination of the likelihood of confusion under Section 2(d) is based on an analysis of all probative facts in the record that are relevant to the likelihood 3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear. Applicant’s appeal brief appears at 6 TTABVUE and the Examining Attorney’s brief appears at 8 TTABVUE. 4 Citations in this opinion to the application record are to pages in the Trademark Status & Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office (“USPTO”). 5 February 17, 2020 Specimen of Use at TSDR 1. 6 March 11, 2020 Office Action at TSDR 2-4. 7 Id. at TSDR 5-14; July 7, 2020 Final Office Action at TSDR 2-29. 8 July 7, 2020 Final Office Action at TSDR 30-73. Serial No. 88799928 - 4 - of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). We 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). Two key DuPont factors in every Section 2(d) case are the first two factors regarding the similarity or dissimilarity of the marks and the goods or services, because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Applicant focuses solely on the first factor, arguing that “due to the difference in sight, sound, and meaning” between the marks “the relative [sic] consumer should not be confused,” and “[i]t is for these reasons that the Applicant respectfully believes there is no likelihood of confusion.” 6 TTABVUE 5. A. Similarity or Dissimilarity of the Marks Under the first DuPont factor, we consider “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Serial No. 88799928 - 5 - The proper test regarding similarity “is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). “The proper perspective on which the analysis must focus is on the recollection of the average customer, who retains a general rather than specific impression of marks.” In re i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted).9 For ease of reference in following our summary of the competing arguments and our analysis under the first DuPont factor, we again reproduce the marks below: 9 The services identified in the application are “On-line retail store services featuring hoodies, t-shirts, sweatshirts, pillows, mugs, phone cases, jewelry, and hats,” and the average customers for those services include members of the general public who shop online for the referenced goods. Serial No. 88799928 - 6 - Applicant acknowledges that “Applicant’s mark and the registered mark contain similar words,” 6 TTABVUE 4, but argues that the marks differ in each means of comparison. With respect to appearance, Applicant argues that its “mark is much longer when analyzing the difference in sight.” Id. Applicant claims that there is only an “overlap of 10% of sight similarity” between the marks due to the presence of the word CYPHER in each, and that if one “omits the words containing the registered mark from Applicant’s mark, 90% of Applicant’s mark remains,” and this “does not make the marks similar enough to cause confusion.” Id. Applicant also argues that while the “Examining Attorney contends that Applicant’s slogan is insignificant, and would be ignored by consumers,” “the slogan comprises 90% of Applicant’s mark, and although the word ‘CYPHER’ is larger, it creates a significant portion of the commercial impression of the mark.” Id. Applicant further argues that “the Examining Attorney is also ignoring over 50% of Registrant’s mark in his analysis” because the “design element of Registrant’s mark is clearly part of the commercial impression of the mark, and the Examining Attorney is limited his analysis to the word ‘CYPHER.’” Id. Finally, Applicant argues that “Applicant’s mark lacks digits while the registered mark contains numbers” and that “[w]hen the entirety of the mark is examined, Applicant’s mark appear to the consumer to be different.” Id. at 5. Applicant contends that “Applicant’s mark and the registered mark differ greatly in sound” because “Applicant’s mark contains 11 syllables as opposed to the registered mark which contains 4 syllables.” Id. According to Applicant, “[t]his vast Serial No. 88799928 - 7 - difference causes the marks to sound entirely different,” id., because “[o]ne phrase requires taking a breath in the middle while the other can be quickly uttered,” and the “registered mark is short and snappy while Applicant’s mark requires a pause in the middle.” Id. With respect to meaning, Applicant argues that “the registered mark, Cypher 360, invokes an image of cryptic code being everywhere,” while Applicant’s mark “puts forth a message that you can create your own sense of style.” Id. The Examining Attorney responds that “[b]oth marks share the same phonetic term ‘CYPHER’ in the first-word position where it focuses consumer attention,” 8 TTABVUE 10, and “[c]onsumers are generally more inclined to focus on the first word, prefix, or syllable in any trademark or service mark.” Id. at 10-11. He argues that “[t]he dominance of the shared term ‘CYPHER’ is also visually reinforced” because “the additional wording [in the marks] is placed at the bottom of both marks and is small in size which draws attention away from it and toward the larger sized ‘CYPHER’ wording,” and the “term ‘CYPHER’ is presented in a large size in comparison to the additional wording and occupies a large amount of space in each mark.” Id. at 11. He further contends that “as to the way the marks are structured, the dominant term ‘CYPHER’ is placed in the top portion of each mark which consumers will encounter first before moving their eyes downward to the additional smaller wording.” Id. He concludes that the word CYPHER is the dominant portion of both marks because “‘CYPHER’ is first-word dominant, is visually large in size Serial No. 88799928 - 8 - compared with the rest of the elements and wording in the marks, and is prominently displayed at the top section.” Id. at 12. The Examining Attorney argues that the marks are similar in appearance and sound because “a mark comparison under Section 2(d) does not involve a strict juxtaposition with the cited registration because this is not normally the way that consumers encounter marks in the marketplace,” id. at 13, and that Applicant’s argument that the marks are dissimilar in connotation and commercial impression is “conclusory in nature and not supported by any evidence in the record.” Id. The marks must be considered in their entireties, but “‘in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.’” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)). We will begin by determining the dominant portion of the marks. In Applicant’s mark, the word CYPHER appears “in a large, bold typeface,” In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018), and in stylized lettering that draws the eyes to the word, above a slogan in a much smaller, non- descript typeface. The cited mark is a composite word-and-design mark, and in such marks “the words are normally accorded greater weight because they are likely to make a greater impression upon purchasers, to be remembered by them, and to be used by them to request the goods.” Id. (citing In re Viterra, Inc., 671 F.3d 1358, 101 Serial No. 88799928 - 9 - USPQ2d 1905, 1908 (Fed. Cir. 2012)). This general principle applies to the cited mark, in which CYPHER appears above double C’s enclosing the term “360°,” which appears in much smaller font. In each mark, the word CYPHER “comprises the largest literal portion of the mark in terms of size, position, and emphasis,” and “is also the first term in the mark, further establishing its prominence.” Id. at 1184-85. We agree with the Examining Attorney that the word CYPHER is the dominant portion of both marks, and turn now to the required comparison of the marks in their entireties, giving greater weight in that comparison to the word CYPHER than to the other elements of the marks. In assessing the similarity or dissimilarity of the marks in all means of comparison, the marks “must be considered . . . in light of the fallibility of human memory’ and ‘not on the basis of a side-by-side comparison.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). We must also take into account “the penchant of consumers to shorten marks,” particularly when they are verbalized. In re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (finding that it “is reasonable that such a practice would lead many consumers to drop the highly descriptive/generic term ‘Blonde’ when calling for Applicant’s” beer sold under the TIME TRAVELER BLONDE mark) (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring: “the users of language have a universal habit of shortening full names -- from haste or laziness or just economy of words.”)); see also Aquitaine Wine USA, 126 Serial No. 88799928 - 10 - USPQ2d at 1188 (“consumers often have a propensity to shorten marks” when ordering goods or services orally). We begin by considering the marks’ similarity or dissimilarity in appearance. As discussed above, in composite word-and-design marks such as the cited mark, words are more likely to be remembered and relied on than designs. Id. at 1184. As a result, the “general rather than specific impression” of the cited mark, i.am.symbolic, 127 USPQ2d at 1630, in the mind’s eye of a consumer familiar with the mark is likely to consist of the word CYPHER positioned above other matter that is less likely to be recalled in any detail. A consumer with such a general recollection of the cited mark who separately encounters Applicant’s mark would view that mark as having essentially the same format as the cited mark, with the word CYPHER appearing above other matter that is smaller than the word.10 There are differences in appearance that are apparent in a side-by-side review of the marks, but applying the required means of comparison, we find that the marks are more similar than dissimilar in appearance due to the prominence of the word CYPHER in each mark. Turning next to the similarity or dissimilarity of the marks in sound, Applicant’s main argument that the marks “differ greatly in sound” because its mark contains 11 syllables while the cited mark contains only four, 6 TTABVUE 5, assumes that all of 10 Applicant’s argument that “the slogan comprises 90% of Applicant’s mark, 6 TTABVUE 4, appears to be based on the facts that there are 10 words in the mark and that nine of them are in the slogan. We agree with the Examining Attorney that “Applicant’s approach is overly mechanistic.” 8 TTABVUE 12. Although the slogan contains 90% of the words in the mark, the word CYPHER dominates the mark because it appears in first position in far larger typeface than the slogan, and is far more likely than the slogan to be remembered and relied on in referring to Applicant’s services. Serial No. 88799928 - 11 - the literal elements of each mark will be verbalized by consumers in oral uses of the marks. We find that to be very unlikely. A design in a composite word-and-design mark such as the cited mark ordinarily “is viewed, not spoken,” In re Electrolyte Labs., Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990), and what the registrant describes as the “double C’s” in the cited mark would likely never be verbalized. The cited mark could be verbalized as “Cypher 360 degrees” or even “Cypher 360” through articulation of all of its alphanumeric and symbolic elements,11 but it is more likely to be verbalized simply as “Cypher” because “360°” appears in the middle of the “double C’s” rather than immediately after or adjacent to the dominant word “CYPHER,” and is small in size relative to the word. Given the length and complexity of Applicant’s slogan, which Applicant claims “requires a pause in the middle” when it is spoken, 6 TTABVUE 5, and “the penchant of consumers to shorten marks,” Bay State Brewing, 117 USPQ2d at 1961, it is very unlikely that consumers would verbalize Applicant’s mark as “Cypher When It Comes to Style Write Your Own Code” even though the slogan is not descriptive or generic verbiage. Applicant’s mark is instead a textbook example of the sort of mark that will be shortened by consumers to CYPHER alone in oral uses of the mark to avoid having to recall and then verbalize a long string of words. The two marks sound identical when they are verbalized in their most likely manners. But even in the unlikely event that one or both of them are verbalized in 11 We note, however, that the registrant describes the designs as “double C’s” rather than double circles, and as described, the designs do not give any additional meaning to the number 360. Serial No. 88799928 - 12 - full as “Cypher 360 degrees” (or “Cypher 360”), and “Cypher When It Comes to Style Write Your Own Code,” they remain more similar than dissimilar in sound because the first element that is spoken and heard is the identical source-identifying word “Cypher.” Finally, we consider the similarity or dissimilarity of the marks in meaning. We take judicial notice that the word CYPHER that is common to the marks is a variation of the word “cipher,” which is “a method of transforming a text in order to conceal its meaning.”12 There is no evidence that CYPHER does not connote such a “secret code” in both Applicant’s mark for online retail store services featuring T-shirts and other goods, and the cited mark for T-shirts. Cf. In re Embiid, 2021 USPQ2d 577, at *21 (TTAB 2021) (phrase TRUST THE PROCESS comprising both marks found to have the same meaning for shoes, and shirts and sweatshirts). To the contrary, Applicant acknowledges that CYPHER has the same connotation of “secret code” in both marks because Applicant claims that “the registered mark, Cypher 360, invokes an image of cryptic code being everywhere,” while Applicant’s mark “puts forth a message that you can create your own sense of style,” 6 TTABVUE 5, by “Writ[ing] Your Own Code.” Applicant’s claim as to the marks’ meanings is unsupported by record evidence, but even assuming that the marks play on the “secret code” theme somewhat differently, there is no record evidence of any third-party use of CYPHER (or CIPHER), and a 12 MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on August 5, 2021). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format or have regular fixed editions. See, e.g., In re tapio GmbH, 2020 USPQ2d 11387, at *3 n.10 (TTAB 2020). Serial No. 88799928 - 13 - consumer familiar with the cited mark for T-shirts could readily believe, mistakenly, that Applicant’s mark is a variation of the cited mark that indicates that the registrant has expanded from T-shirts per se into online retail store services featuring T-shirts and other goods. We find that the marks are more similar than dissimilar in meaning. When considered in their entireties, the marks are more similar than dissimilar, and the first DuPont factor thus supports a finding of a likelihood of confusion. B. Similarity or Dissimilarity of the Goods and Services, and Channels of Trade The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration,” Detroit Athletic Co., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ at 567), while the third DuPont factor considers “the similarity or dissimilarity of established, likely-to-continue trade channels.’” Id. at 1052 (quoting DuPont, 177 USPQ at 567). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161- 63 (Fed. Cir. 2014). As noted above, Applicant does not address these DuPont factors, thus “[a]pparently conceding this issue.” In re Morinaga Nyugyo K. K., 120 USPQ2d 1738, 1740 (TTAB 2016). “The goods and services need not be identical or even competitive to find a likelihood of confusion.” In re Country Oven, Inc., 2019 USPQ2d 443903, at *4 (TTAB 2019). “They need only be ‘related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods and services] emanate from the same source.’” Id. (quoting Coach Serial No. 88799928 - 14 - Servs., 101 USPQ2d at 1722). “We compare the goods and services as they are identified in the involved application and cited registration. . . .” Id. The services identified in Applicant’s application are “On-line retail store services featuring . . . t- shirts,” while the goods identified in the cited registration include “t-shirts.”13 The Examining Attorney points out that “[t]he use of similar marks on or in connection with both products and retail-store services has been held likely to cause confusion where the evidence showed that the retail-store services featured the same type of products.” 8 TTABVUE 6. He cites Detroit Athletic Co., Country Oven, and In re House Beer, LLC, 114 USPQ2d 1073 (TTAB 2015), id., which found a likelihood of confusion where similar marks were used both for retail services featuring particular goods, and for the goods themselves. These cases, and others that they cite, make clear that confusion may be likely to arise through the use of similar marks in connection with retail store services featuring certain goods and on the goods themselves, and provide the analytical framework in which to decide the issue of the similarity or dissimilarity of the goods and services here. In Detroit Athletic Co., the Federal Circuit affirmed the Board’s finding that services identified in the involved application as “‘On-line retail consignment stores featuring sports team related clothing and apparel; Retail apparel stores; Retail shops featuring sports team related clothing and apparel; Retail sports team related 13 The Examining Attorney need not prove, and we need not find, a likelihood of confusion as to each of the goods featured in the online retail store services identified in the application. Likelihood of confusion must be found as to the entire class if it exists as to “On-line retail store services featuring . . . t-shirts . . . .” See Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). Serial No. 88799928 - 15 - clothing and apparel stores” were related to goods identified in the cited registration as “Clothing, namely athletic uniforms, coats, golf shirts, gym suits, hats, jackets, sweat pants, sweat shirts, polo shirts, and T-shirts.” The court noted that it had previously “held that confusion is likely where one party engages in retail services that sell goods of the type produced by the other party, as here.” Detroit Athletic Co., 128 USPQ2d at 1051 (citing In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988) (finding similarity between furniture and “general merchandise store services” and rejecting the distinction between goods and services as having “little or no legal significance.”)). In Country Oven, the Board analyzed the relatedness of services identified in the involved application as “Self-serve retail bakery shops; Retail bakery shops; bakery services, namely, online retail bakery shops” and “Bakery services, namely, the manufacture of bakery products to the order and/or specification of others” to goods identified in the cited registration as “bread buns.” The Board noted that in St. Helena Hosp., the Federal Circuit had held that in cases involving the relatedness of goods to services, if “the relatedness of the goods and services is obscure or less evident, the PTO will need to show ‘something more’ than the mere fact that the goods and services are ‘used together.’” St. Helena Hosp., 113 USPQ2d at 1087 (quoting Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1355 (Fed. Cir. 2004)). The Board found that “the relationship between baked goods, including bread buns, and bakeries is the opposite of obscure, unknown, or generally unrecognized,” and that “the relevant line of case law holds that confusion may be likely to occur from Serial No. 88799928 - 16 - the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other.” Country Oven, 2019 USPQ2d 443903, at *13 (citing Detroit Athletic Co.). Finally, in House Beer, the Board found that services identified in the involved application as “Retail store services featuring beer” were related to goods identified in the cited registration as “beer,” and noted that “it has often been recognized that likelihood of confusion may arise where confusingly similar marks are used on goods, on the one hand, and in connection with sales of such goods, on the other.” House Beer, 114 USPQ2d at 1078 (citing Wet Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1640 (TTAB 2006)). The Board recently noted the “limited utility of reliance, in lieu of supporting evidence, on past decisions in which the Board has or has not found various clothing items to be related,” Embiid, 2021 USPQ2d 577, at *26, and the Examining Attorney properly supports his position not only with the applicable case law, but also with evidence, to which we now turn. Evidence of relatedness may include news articles or evidence from computer databases showing that the relevant goods and services are used together or used by the same purchasers; advertisements showing that the relevant goods and services are advertised together or sold by the same manufacturer or dealer; or copies of use-based registrations of the same mark for both the applicant’s services and the goods listed in the cited registration. Country Oven, 2020 USPQ2d 443903, at *4-5. The Examining Attorney made of record several webpages showing that online retailers offer both “On-line retail store services featuring . . . t-shirts,” and “t- Serial No. 88799928 - 17 - shirts.”14 He also made of record multiple third-party, use-based registrations of marks covering both retail services featuring clothing, including t-shirts (or “shirts”), and t-shirts themselves.15 “Just as we must consider the full scope of the goods and services as set forth in the application and registration under consideration, we must consider the full scope of the goods and services described in a third-party registration” that is offered to show relatedness. Id., at *9. Accordingly, because a “t-shirt” is by definition a form of “shirt,” we must construe the goods broadly identified as “shirts” to encompass “t- shirts.” Varsity Pajamas, Inc. v. Schackne, 143 USPQ 428, 430 (TTAB 1964). We must similarly construe the various broadly identified retail store services to encompass online services to the extent that the identifications do not expressly include them, and the “clothing” and “apparel” identified as featured as part of the services to encompass “T-shirts” to the extent that the identifications do not expressly include them. Country Oven, 2019 USPQ2d 443903, at *9. By definition, online retailers who provide retail store services featuring T-shirts sell T-shirts, and “[t]here is evidence that third parties have registered and use the 14 March 11, 2020 Office Action at TSDR 8-14 (hm.com); July 7, 2020 Final Office Action at TSDR 2-11 (abercrombie.com); 18-22 (shein.com); 23-29 (lululemon.com). 15 July 7, 2020 Final Office Action at TSDR 30-32, 52-54 (“retail store services featuring clothing . . . .”), 36-38 (“retail store and on-line retail store services featuring clothing”), 39- 42, 61-63, 64-66, 70-73 (“online retail store services featuring clothing . . . .”), 43-45 (“retail store services featuring clothing . . . .”), 46-48 (“On-line retail store services featuring adult, child and infant apparel”), 49-51 (“Online ordering services and online retail store services, all of the aforementioned featuring . . . clothing . . . .”), 55-57 (“Online retail store services featuring . . . t-shirts”), and 58-60 (“Online and offline . . . retail store services featuring clothing . . . .”). Serial No. 88799928 - 18 - same mark to offer the goods of the Registrant and the services of the Applicant. The evidence of record suffices to show that Applicant’s services and Registrant’s goods are clearly related.” Id., at *14. The second DuPont factor supports a finding of a likelihood of confusion. With respect to the third DuPont factor, Applicant’s application expressly limits the channels of trade for its retail store services to the Internet, while the cited registration has no limitations on the channels of trade for the goods identified as “T- shirts.” “The registered goods presumptively move in all relevant trade channels” for those goods, id., and Applicant’s identification of services and the third-party use evidence in the record show that the “relevant trade channels” for T-shirts include online retail stores featuring T-shirts. Because the relevant goods are sold through the same channels of trade in which the services are rendered, the third DuPont factor also supports a finding of a likelihood of confusion. C. Conclusion All three relevant DuPont factors support a finding of a likelihood of confusion. The marks are more similar than dissimilar, the identified goods and services are inherently related, and the record shows that they frequently originate from the same source, and the goods are sold in the same channels of trade in which the services are rendered. We find that Applicant’s use of its mark in connection with the identified services is likely to cause confusion, mistake, or deception. Decision: The refusal to register is affirmed.