De Beers UK Limited

Trademark Trial and Appeal BoardJul 7, 2020

87813670 (T.T.A.B. Jul. 7, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: July 7, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re De Beers UK Limited _____ Serial No. 87813670 _____ Tiffany L. Schwartz and Benjamin P. Harbuck of Dentons US LLP, for De Beers UK Limited. Jonathon Schlegelmilch, Trademark Examining Attorney, Law Office 108, Kathryn E. Coward, Managing Attorney. _____ Before Wellington, Greenbaum and Larkin, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: De Beers UK Limited (“Applicant”) seeks registration on the Principal Register of the mark FOREVERMARK ALCHEMY (in standard characters) for Precious metals and their alloys; badges of precious metal; ingots of precious metal; boxes of precious metal; ornaments of precious metal in the nature of jewelry; jewellery including precious stones and diamonds; precious stones; diamonds; horological and chronometric instruments including watches, pocket watches and clocks, in International Class 14, and Retail and wholesale store services featuring precious metals and their alloys, badges of precious metal, ingots of precious metal, boxes of precious metal, ornaments of Serial No. 87813670 - 2 - precious metal, jewellery including precious stones and diamonds, horological and chronometric instruments including watches, pocket watches and clocks; Advertising and marketing services in the field of precious metals and their alloys, badges of precious metal, ingots of precious metal, boxes of precious metal, ornaments of precious metal, jewellery including precious stones and diamonds, horological and chronometric instruments including watches, pocket watches and clocks, in International Class 35.1 The Trademark Examining Attorney has refused registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used on or in connection with the identified goods and services, is likely to cause confusion with the following marks, the first two of which are owned by one registrant, while the third is owned by a different registrant: 1. ALCHEMY (in typed format) for, in relevant part, “jewelry and imitation jewelry (namely, necklaces, earrings, rings, bracelets, brooches and pins) as well as precious stones and precious metals in bulk form” in International Class 14;2 2. ALCHEMY, in stylized format, displayed as , for, in relevant part, “jewelry and imitation jewelry; namely, necklaces, 1 Application Serial No. 87813670 was filed on February 27, 2018, based upon Applicant’s allegation 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) of the Trademark Act. 2 Reg. No. 1456455 (“‘455 Reg.”) issued on September 8, 1987; twice renewed. Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. A typed mark is the legal equivalent of a standard character mark. See TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2018). Serial No. 87813670 - 3 - earrings, rings, bracelets, brooches and pins, as well as precious stones and precious metals in bulk form” in International Class 14;”3 and 3. ALCHEMY, in stylized format displayed as , for “On- line retail store services featuring apparel, jewelry and footwear” in International Class 35.4 After the Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. I. Likelihood of Confusion Our determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). 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 considerations are the similarities between the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 3 Reg. No. 1896121 (“‘121 Reg.”) issued on May 30, 1995; twice renewed. 4 Reg. No. 4526629 (“‘629 Reg.”) issued on May 6, 2014. Serial No. 87813670 - 4 - 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 [or services] and differences in the marks.”). A. Similarity or Dissimilarity of the Goods and Services Under the second DuPont factor, we base our evaluation on the goods and services as they are identified in the application and cited registrations. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). It is not necessary for the Examining Attorney to prove likelihood of confusion with respect to each item of goods or services identified in Applicant’s two- class application; if there is a likelihood of confusion as to any of Applicant’s identified goods or services, the refusal of registration must be affirmed for the entire class of goods or services. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). The goods identified in the application and the ‘455 and ‘121 registrations include identical jewelry, precious stones and precious metals, and the services identified in the application and the ‘629 registration include identical retail store services featuring jewelry. To the extent the ‘455 and ‘121 registrations identify goods and not services, it is well established that goods and services may be related, especially where, as here, one mark is used in connection with retail stores which sell the goods identified by another mark. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d Serial No. 87813670 - 5 - 1025, 1026 (Fed. Cir. 1988) (BIGGS for retail grocery and general merchandise store services likely to be confused with BIGGS for furniture). Indeed, in a case with facts similar to those presented here, this Board held that “[i]t 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.” In re Thomas, 79 USPQ2d 1021, 1023 (TTAB 2006) (citing Fortunoff Silver Sales, Inc. v. Norman Press, Inc., 225 USPQ 863, 866 (TTAB 1985) (“there is little question that jewelry store services and jewelry are highly related goods and services”); and In re Jewelmasters, Inc., 221 USPQ 90 (TTAB 1983)). Applicant does not dispute that the goods and services identified in the application and the goods and services identified in the registrations include identical or closely related items. This DuPont factor weighs heavily in favor of a finding of likelihood of confusion. B. Purchasing Conditions Applicant contends, without support, that Applicant’s goods are expensive and that, therefore, consumers will exercise great care in their purchases.5 There are several problems with this argument. 5 Citing the October 17, 2018 Office Action, TSDR at 3-4, Applicant also contends that the Examining Attorney has “conceded” that “the buyers of the goods and services associated with Applicant’s Mark and the Cited Marks are sophisticated purchasers.” App. Br., 4 TTABVUE 23. Applicant is mistaken. The Examining Attorney addressed Applicant’s argument during prosecution by restating the well-known principles that (1) purchasers who are sophisticated or knowledgeable in a particular field are not necessarily sophisticated or knowledgeable about trademarks or immune from source confusion, and (2) where Serial No. 87813670 - 6 - First, while Applicant references in its brief evidence from a third-party website purportedly showing some of Applicant’s expensive diamond jewelry,6 Applicant did not submit this evidence, and it is thus not of record. Attorney argument is no substitute for evidence. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (argument of counsel is no substitute for evidence); In re Simulations Publ’ns, 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief cannot take the place of evidence.”). Second, even if some of Applicant’s goods are expensive, the goods and services identified in the application and cited registrations are not limited to expensive jewelry, precious stones and precious metals, and therefore include such goods (and services related to those goods) at all price points. As stated above, we are bound by the identifications as written in the application and cited registrations, and cannot limit Applicant’s or Registrants’ goods or services – or their channels of trade, classes purchasers include professionals and the general public, the appropriate standard of care for purchasing the goods and services is that of the least sophisticated potential purchaser. October 17, 2018 Office Action, TSDR 3-4; May 7, 2019 Final Office Action, TSDR 3-4. See, e.g., Stone Lion Capital, 110 USPQ2d at 1163-64. The Examining Attorney reiterated these principles in his brief. 6 TTABVUE 12. We further note that the cited language is the only time in its brief that Applicant even mentions the purported sophistication of Registrants’ purchasers; Applicant’s arguments focus exclusively on the purported sophistication of its own customers. All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and after this designation are the page references, if applicable. 6 App. Br., 4 TTABVUE 23 (referencing September 27, 2018 Response to Office Action, TSDR at 15). Serial No. 87813670 - 7 - of customers, or price points – to what any evidence may show them to be.7 Stone Lion Capital, 110 USPQ2d, at 1162 (“It was proper, however, for the Board to focus on the application and registrations rather than on real-world conditions, because ‘the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application.”); Dixie Rests., 41 USPQ2d at 1534; In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). In other words, because there are no limitations in the identifications of goods or services in the application or cited registrations, we must presume that Applicant and both Registrants sell all types of jewelry, including expensive diamond rings, as well as inexpensive silver or gold bracelets, necklaces and rings, with or without precious or synthetic stones, to all types of purchasers. In this regard, we note that a screenshot from Zales shows a diamond necklace for sale for $50 and a screenshot from Poshmark shows a white gold heart pendant with diamond for sale for $30. March 27, 2018 Office Action, TSDR at 19 and 32. This evidence demonstrates that the identified goods and services cover certain jewelry of precious metals with precious stones that cost $50 or less. Third, even if purchasers of certain types of jewelry are discriminating, that does not necessarily mean that they are immune from source confusion because as discussed above, the goods and services include and closely related identical items, and as discussed below, the marks are similar. Palm Bay Imps., Inc. v. Veuve Clicquot 7 Although, as noted, Applicant did not submit screenshots of its own goods, Applicant submitted screenshots of the ‘455 Reg. and ‘121 Reg. Registrant’s webpages displaying various jewelry for $50 or less. April 17, 2019 Response to Office Action, TSDR at 28-32. Serial No. 87813670 - 8 - Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1695 (Fed. Cir. 2005); In re Decombe, 9 USPQ2d 1812 (TTAB 1988). Further, the purchasers of at least inexpensive and some costume jewelry are ordinary consumers who would exercise only a normal degree of care in purchasing jewelry, and who are likely to purchase jewelry on impulse, thereby increasing the risk of confusion. See Thomas, 79 USPQ2d at 1024 (“the purchasers of at least costume items of jewelry are ordinary members of the general public. Considering that this type of jewelry, as applicant points out, is relatively inexpensive, it is therefore likely to be purchased casually and on impulse, thus increasing the risk of confusion.”) (citing Kimberly-Clark Corp. v. H. Douglas Enter., Ltd., 775 F.2d 1144, 227 USPQ 541 (Fed. Cir. 1985)). Based upon the identifications of goods and services and the evidence of record, we find that the purchasing conditions add to the likelihood of consumer confusion. The fourth DuPont factor therefore also weighs in favor of a finding of likelihood of confusion. C. The Similarity or Dissimilarity of the Marks We next consider the similarity or dissimilarity of the marks at issue in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imps., 73 USPQ2d 1689 (Fed. Cir. 2005). “The proper test 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.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) Serial No. 87813670 - 9 - (quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d, 1901, 1905 (TTAB 2007)). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). In this case, because the goods and services at issue are jewelry, including inexpensive jewelry, and jewelry store services, the average purchaser is an ordinary consumer. Our analysis cannot be predicated on dissection of the involved marks. Stone Lion Capital, 110 USPQ2d at 1161. Rather, we are obliged to consider the marks in their entireties. Id. See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). We also are mindful that “[w]hen marks would appear on virtually identical goods or services, the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Shen Mfg. Co., Inc. v. The Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004) (where goods and services are highly related, “the degree of similarity necessary to support a conclusion of likely confusion declines.”). Applicant argues that the differences in the marks in appearance and sound and the inclusion of the “family” mark “FOREVERMARK” in Applicant’s mark are sufficient to distinguish them, and that the marks create different commercial Serial No. 87813670 - 10 - impressions.8 The Examining Attorney focuses on the identity of the shared word ALCHEMY, which he contends is the most distinctive portion, and therefore the strongest source identifying element, of each mark. Applicant’s mark FOREVERMARK ALCHEMY incorporates the entire registered marks ALCHEMY. While there is no rule that a likelihood of confusion is present where one mark encompasses another, in this case, as in many others, the fact that Applicant’s mark includes the entirety of the cited marks increases the similarity between them. See, e.g., Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (finding CALIFORNIA CONCEPT marks substantially similar to prior mark CONCEPT); Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for gin). As to the additional literal matter in Applicant’s mark, FOREVERMARK, we find that in considering the mark as a whole, consumers are likely to view FOREVERMARK as a brand reference, and ALCHEMY as a line of FOREVERMARK 8 Because Applicant is attempting to overcome a likelihood of confusion refusal in an ex parte proceeding, the focus of the likelihood of confusion analysis must be on the mark Applicant seeks to register, not on other marks Applicant may have used or registered. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009) ; see also In re Ald, Inc., 148 USPQ 520, 521 (TTAB 1965) ("[I]n view of the specific prohibition of Section 2(d) . . ., the fact that applicant may possess a ‘family’ of marks characterized by the term ‘ALD’ is of no particular significance herein if the mark for which applicant now seeks registration . . . is confusingly similar to the previously registered mark . . . ."). Although a family of marks argument is not available to Applicant in the context of this ex parte proceeding (id.), we will address Applicant’s arguments and evidence about a purported “family” in our discussion of the addition of Applicant’s house mark FOREVERMARK to the cited registered marks ALCHEMY. Serial No. 87813670 - 11 - jewelry. As a general rule, the addition of a house mark or other such matter to one of two otherwise identical or confusingly similar marks will not serve to avoid a likelihood of confusion. See, generally, In re Dennison Mfg. Co., 229 USPQ 141, 144 (TTAB 1986) (GLUE STIC for general purpose adhesive in stick form likely to be confused with UHU GLU STIC for adhesives for paper and stationary); Key West Fragrance & Cosmetic Factory, Inc. v. Mennen Co., 216 USPQ 168 (TTAB 1982) (MENNEN SKIN SAVERS for hand and body lotion confusingly similar to SKIN SAVERS for face and throat lotion). Indeed, “such addition may actually be an aggravation of the likelihood of confusion as opposed to an aid in distinguishing the marks so as to avoid source confusion.” In re Christian Dior, S.A., 225 USPQ 533, 534 (TTAB 1985) (citations omitted) (finding LE CACHET DE DIOR confusingly similar to CACHET). See also In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558, 559 (CCPA 1972) (stating that addition of a trade name will make consumers think that products have a common origin or that the companies merged); Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1201-02 (TTAB 2007) (applying principle that “the addition of a trade name or house mark or other such matter to one of two otherwise similar marks will not serve to avoid a likelihood of confusion.”). We recognize, however, that there are exceptions to this general principle. For example, the additional matter may be sufficient to distinguish the mark in situations where the common or shared matter is highly suggestive or merely descriptive of the identified goods or services. It is Applicant's position that one such exception applies here because “[t]he common term between Applicant’s and the Cited marks – Serial No. 87813670 - 12 - ‘Alchemy’ – has a known meaning in the English language, and more specifically in relation to the goods/services at issue amongst Applicant’s mark and each of the Cited marks.” App. Br., 4 TTABVUE 19. As support, Applicant points to (1) a screenshot from the Dictionary.com website (based on the RANDOM HOUSE DICTIONARY (2019)) defining the term “alchemy” as “a form of chemistry and speculative philosophy practiced in the Middle Ages and the Renaissance and concerned principally with discovery methods for transmuting baser metals into gold and with finding a universal solvent and an elixir of life,”9 and (2) eight third-party registrations “for marks that contain the term ALCHEMY (or colorable variations thereon) in classes of interest to the present application (e.g., IC 014 and IC 035),”10 and screenshots of eight websites showing use of third-party marks that include the term ALCHEMY or other purportedly similar marks (e.g., ALCHEMISS, ALCHEMIA BY CHARLES ALBERT, and ALKEMIE), on or in connection with the sale of jewelry.11 9 App. Br., 4 TTABVUE 19, referencing April 17, 2019 Response to Office Action, TSDR at 16. Additional definitions from this source are “any magical power or process or transmuting a common substance, usually of little value, into a substance of great value” and “any seeming magical process of transforming or combining elements into something new.” 10 App. Br., 4 TTABVUE 20-21. Applicant submitted the third-party registrations with its September 27, 2018 Response to Office Action, TSDR at 25-37, and April 17, 2019 Response to Office Action, TSDR at 79-99. Applicant also includes the three cited registrations in its tally of third-party registrations in its Brief, but we do not follow suit. As noted above, two of the three registrations are owned by one registrant, and the third is owned by a different registrant. We are not privy to the reasons why they coexist, and merely note that they are the only registrations of record for the word ALCHEMY, standing alone, for goods or services that are the same as or similar to those at issue here, and thus do not persuade us that the mark ALCHEMY is highly suggestive or descriptive of those goods and services. 11 App. Br., 4 TTABVUE 19. Applicant submitted the marketplace evidence with its September 27, 2018 Response to Office Action, TSDR 52-60, and April 17, 2019 Response to Office Action, TSDR at 34-77. The former reference is to four websites that correspond to four Serial No. 87813670 - 13 - Applicant posits that the cited registered marks and the third-party marks “are used by their respective owners in a manner consistent with the aforementioned definition (e.g., various jewelry items including precious and semi-precious metals in Middle Ages themes),” and that such uses demonstrate that the “uses of the Cited Marks are therefore suggestive of the goods/services.”12 Applicant’s arguments are not persuasive. While we acknowledge that the term “alchemy” has a suggestive connotation when used on or in connection with jewelry, the record does not supports a finding that the term “alchemy” is so highly suggestive or merely descriptive of jewelry such that an exception to the general principle about house marks would apply. In this regard, the aforementioned eight active third-party registered marks that include the word ALCHEMY “(or colorable variations thereon)” have limited probative value. Six of the eight have additional matter or spelling anomalies that result in marks that engender different commercial impressions than the cited registered mark ALCHEMY.13 And neither of the remaining two registrations identifies jewelry or any of the goods or services identified in the application or cited registrations.14 See generally In re Inn at St. John’s, LLC, 126 of the eight third-party registrations. The latter reference is to four websites that do not correspond to any of the eight third-party registrations, and includes evidence from ETSY.com (attached to the April 17, 2019 Response to Office Action, TSDR at 34-67), which we discuss separately below. 12 App. Br., 4 TTABVUE 18-19. 13 The six marks are THE RETAIL ALCHEMISTS, THE ALCHEMISS, THE ALCHEMIST & THE ARTIST, ALCHEMIA BY CHARLES ALBERT, ALKEMICS and FASHION ALCHEMY. 14 ALCHEMY AT AMS identifies “advertising and marketing services, special event planning for business purposes” in Class 35, and “special effect animation services for film and video” and “film, video, audio and television show production services” in Class 41. ALCHEMY HUB Serial No. 87813670 - 14 - USPQ2d 1742, 1745-46 (TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed. Cir. Sept. 13, 2019). Three of the four third-party websites that do not correspond to the third-party registrations use the term ALCHEMY or a phonetic equivalent ALKEMIE in connection with jewelry made with repurposed, recycled or reclaimed metals or gemstones, rather than jewelry “in Middle Ages themes,” per the dictionary definition proffered by Applicant:  alchemyjewelrybrooklyn.com uses the term ALCHEMY to identify jewelry “created with castings taken from industrial artifacts of the machine age,” all of which is “made from reclaimed metals” (April 17, 2019 Response to Office Action, TSDR at 68);  alkemiejewelry.com appears to offer some jewelry that is “reclaimed” (e.g., “Reclaimed Sterling Egyptian Luck Ring” (id., TSDR at 75); and  alchemy925.com sells “contemporary jewelry” and “fine craft[s],” and “enjoys working with clients who are interested in commissioning custom pieces or repurposing jewelry and gemstones.” (id., TSDR at 76). Applicant also submitted 34 pages of screenshots of Etsy.com search results for the term “alchemy jewelry” (id., TSDR at 34-67) in which the term “alchemy” (or similar terms) is used loosely to describe various types of jewelry, rather than as a brand identifies “on-line retail store services featuring a wide variety of consumer goods of others” in Class 35. Likewise, one of the six registrations listed in the prior footnote (FASHION ALCHEMY) is registered for various clothing items in Class 25, and retail clothing stores in Class 35. Serial No. 87813670 - 15 - name (e.g., “Alchemy Archangels witchcraft ring amulet Wicca talisman,” “Occult Talisman Wisdom Magic Alchemy,” “Triangle Alchemy Necklace, Earth Element Necklace-Silver Triangle Necklace, Triangle Alchemy symbol earth necklace” and “PLANET GLYPHS SYMBOLS Planetary Alchemical Symbols transmutation Occult Alchemy Moon Sun Jupiter Mars Monas hieroglyphica Sulfur pagan.”).15 Id., TSDR at 35, 36, 38 and 42. The third-party registration and marketplace evidence provides additional support for our finding above that the term ALCHEMY is suggestive of jewelry or jewelry stores, albeit based on one of the two additional dictionary definitions concerning transmutation or transformation of common substances or elements into something of great value or something new, rather than definition proffered by Applicant. Viewing the record as a whole, we are not persuaded that the term ALCHEMY possesses the degree of suggestiveness or significance in relation to jewelry, precious stones, and jewelry stores such that Applicant’s addition of the “house mark” FOREVERMARK, although it appears in the initial position, suffices for purposes of outweighing the similarity among the marks and distinguishing Applicant’s mark from the cited registered marks. There is no question that the word ALCHEMY alone 15 This evidence quotes prices in Euros rather than dollars, which indicates that this particular segment of the Etsy.com online store is not based in the U.S., and is targeted at non-U.S. customers. Although there is no evidence of exposure by U.S. consumers to this portion of the Etsy.com website, we recognize that U.S. consumers may have been exposed to it when searching for goods on the Etsy.com U.S. website. Thus, we reduce, but do not wholly discount, the probative value of this evidence as to how U.S. customers perceive the term “alchemy” for jewelry. In re i.am.symbolic, llc, 127 USPQ2d 1627, 1634 n.8 (TTAB 2017). Serial No. 87813670 - 16 - is suggestive of the identified goods and services, based on any of the three meanings noted above. However, the evidence does not lead us to conclude that the term ALCHEMY is so highly suggestive of jewelry, precious stones, and jewelry stores, or that it has been adopted by so many third parties, such that the cited registrations are entitled to a scope of protection sufficiently narrow to permit Applicant’s mark to register for identical and closely related goods and services. Because the term ALCHEMY comprises the entirety of each cited registration and a significant portion of Applicant’s mark, we that Applicant’s mark and the cited registered marks, as a whole, are more similar than dissimilar in appearance, sound, connotation and commercial impression. Contrary to Applicant’s contention, the addition of FOREVERMARK to Applicant’s mark does not significantly alter the commercial impression of the mark. That is, purchasers familiar with Registrants’ mark ALCHEMY as used on the identified jewelry and jewelry stores, are likely to assume that the house mark FOREVERMARK simply identifies what had previously been an anonymous source for those goods and services, see In re Fiesta Palms LLC, 85 USPQ2d 1360, 1364 (TTAB 2007) (“When, as in this case, the common part of the marks is identical, purchasers familiar with the registrant's mark are likely to assume that the house mark simply identifies what had previously been an anonymous source.”), and that Applicant’s mark is a variant mark identifying a new line of jewelry, precious stones, and jewelry stores. See In re Riddle, 225 USPQ 630, 632 (TTAB 1985) (“Richard Petty’s Accu Tune” for automotive service centers Serial No. 87813670 - 17 - specializing in engine tune-ups and oil changes likely to cause confusion with “Accutune” automotive testing equipment). Viewing the marks in their entireties, we find that their similarities in sound, appearance, meaning and commercial impression outweigh their dissimilarities. This DuPont factor also favors a finding of likelihood of confusion. D. The Number and Nature of Similar Marks in Use in Connection With Similar Goods or Services The sixth DuPont factor is the “number and nature of similar marks in use on similar goods [or services].” To the extent Applicant’s arguments about third-party uses, discussed above, falls under the sixth DuPont factor rather than the first, we further find that the number and nature of similar marks in use in connection with similar goods or services is neutral: this record does not support a finding that the term ALCHEMY (or similar terms) is highly suggestive or descriptive, let alone commercially weak or diluted through use, in the United States for jewelry or related retail services. Cf., Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015). II. Conclusion After considering all of the arguments and evidence of record as they pertain to the relevant DuPont factors, we find that the application includes goods and services that are identical or closely related to the goods and services identified in the cited registrations; when viewed in their entireties, the marks are similar in appearance, Serial No. 87813670 - 18 - sound, connotation and commercial impression, and the inclusion of Applicant’s house mark FOREVERMARK does not distinguish Applicant’s mark from the cited registered marks, and might, instead, add to the likelihood of confusion; the purchasing conditions also add to the likelihood of consumer confusion; and the number and nature of similar marks in use on similar goods and services is neutral. Decision: The refusal to register Applicant’s mark FOREVERMARK ALCHEMY is affirmed.