Entourage Clothing Franchising

Trademark Trial and Appeal Board

Feb 4, 2014

No. 85651045 (T.T.A.B. Feb. 4, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
February 4, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Entourage Clothing Franchising
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Serial No. 85651045
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Matthew T. Hoots of Smith Risley Tempel Santos LLC for Entourage Clothing
Franchising.

John M. Gartner, Trademark Examining Attorney, Law Office 102 (Mitchell Front,
Managing Attorney).
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Before Seeherman, Wolfson, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Entourage Clothing Franchising has filed an application to register on the
Principal Register the mark set forth below for “Retail clothing boutiques featuring
clothing for women.”1

1 Application Serial No. 85651045, filed under Trademark Act § 1(a), 15 U.S.C. §1051(a), on
June 13, 2012, claiming a date of first use of June, 2008 and a date of first use in commerce
of July, 2008.
Serial No. 85651045

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The trademark examining attorney refused registration under § 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, as used in
connection with applicant’s services, so resembles the mark set forth below as to be
likely to cause confusion, or to cause mistake, or to deceive.

The color blue is claimed as a feature of the mark. The design beneath the wording
is described as “a bar code pattern.” The cited mark is registered for “On-line retail
store services featuring clothing and clothing accessories for men, women and kids;
retail apparel stores; retail clothing boutiques; retail clothing stores.”2 When the
refusal was made final, applicant filed a request for reconsideration, which was
denied. This appeal ensued. Applicant and the examining attorney have filed
briefs and applicant has filed a reply brief.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and services at issue. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case, the

2 Reg. No. 3872804, issued on November 9, 2010.
Serial No. 85651045

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applicant and the examining attorney have also submitted arguments regarding the
sophistication of customers.
1. The services at issue.
Addressing first the services of applicant and registrant, we find that they
are legally identical. The cited registration covers “retail clothing boutiques,” which
encompasses within its scope applicant’s slightly more specifically identified “Retail
clothing boutiques featuring clothing for women.” Moreover, the “retail apparel
stores” and “retail clothing stores” identified in the registration also encompass
applicant’s services; and the “on-line retail store services featuring clothing and
clothing accessories for men, women and kids” are closely related to applicant’s
services. Applicant has not argued as to the similarity of the services. Accordingly,
the du Pont factor relating to the similarity or dissimilarity of the services at issue
weighs in favor of a finding of likelihood of confusion.
2. Trade channels.
As applicant’s services are legally identical to those of the registrant, we
must presume that the services of applicant and registrant move in the same
channels of trade and are offered to the same classes of consumers. See In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); American
Lebanese Syrian Associated Charities Inc. v. Child Health Research Institute, 101
USPQ2d 1022, 1028 (TTAB 2011); In re Smith and Mehaffey, 31 USPQ2d 1531,
1532 (TTAB 1994). Applicant has offered no argument on this point. Accordingly,
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the du Pont factor relating to the similarity or dissimilarity of trade channels favors
a finding of likelihood of confusion.
3. The marks.
We next consider the similarity or dissimilarity of the marks at issue in
appearance, sound, meaning, and overall commercial impression. In a particular
case, any one of these means of comparison may be critical in finding the marks to
be similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re
Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks, we
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 America, 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind,
85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Products Inc. v.
Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007). As applicant correctly urges,
we must consider each mark in its entirety. However, 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 that our ultimate conclusion rests upon a comparison of
the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985).3

3 We note applicant’s objection that the examining attorney has inappropriately dissected
the mark in his analysis. (Reply brief at 2-4.) While we need not agree with every
conclusion drawn by the examining attorney, it is clear to us that he has considered all
aspects of the marks at issue and the manner in which he has weighed the various aspects
is not inappropriate “dissecting.”
Serial No. 85651045

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The literal components of the marks at issue are, respectively, ENTOURAGE
and ANTOURAGE, which differ only by virtue of their different initial letters.
Applicant’s mark is a common English word having a conventional pronunciation.
The registered mark is not an actual English word, and such marks have no single
correct pronunciation. In re Viterra Inc., 101 USPQ2d at 1912. Nonetheless,
because the marks differ in their spelling by only a single letter and share the
consecutive letter string -NTOURAGE, and because the “AN” portion of the
registered mark could be pronounced as “ahn,” which is the way the “EN” portion of
applicant’s mark would be pronounced, they are likely to be pronounced the same.
The fact that the marks are likely to be pronounced identically or very similarly is
significant in this case, because clothing boutique or clothing store services are
often recommended orally, literally by word of mouth. If a customer tells a friend
that she bought a dress at ANTOURAGE, and the friend knows of a store called
ENTOURAGE, the friend is likely to assume that it is the ENTOURAGE store that
has been recommended—clearly resulting in confusion as to the source of the
services. Centraz Industries Inc. v. Spartan Chemical Co., 77 USPQ2d 1698, 1701
(TTAB 2006) (“Inasmuch as the goods may be ordered by phone or recommended by
word of mouth,” the similarity in sound between ICE SHINE and “is so
substantial that it outweighs any differences in appearance and meaning.”)
Moreover, the connotations of the words may also be viewed as similar. We
note that ENTOURAGE has an established meaning, while there is no evidence
that ANTOURAGE has any meaning. However, consumers could very well view
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ANTOURAGE as a misspelling of ENTOURAGE, and therefore ascribe to it the
same meaning as ENTOURAGE.
Applicant argues that its mark is readily distinguishable by its different style
of lettering and its initial letter E, as opposed to the initial letter A of the cited
mark.4 We have already discussed why the differences in the initial letters do not
affect the similarity of the marks’ pronunciation or meaning. As for the stylization,
neither mark is presented in a particularly distinctive style: applicant’s mark is
shown in a rather ordinary cursive script, and the cited mark is in capital letters.
Although there are certain differences in the marks’ appearance, prospective
purchasers would readily perceive the essence of the two marks to be their literal
portions.
Applicant argues that the overall commercial impressions of the two marks
are different because of the differences in the appearance of the marks, and in
particular the letter “A”, which applicant asserts is not merely a misspelling, but a
misspelling that consumers will recognize and remember, and thereby is the
dominant element of the registrant’s mark that serves to distinguish the marks.
Although we agree that the letter “A” is a point of difference in the two
marks, the overall similarities in sound and meaning outweigh this difference, and
any other differences in appearance, and overall we find that the marks convey
similar commercial impressions.

4 Applicant’s brief at 9.
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Applicant argues that we should not unduly broaden the scope of protection
of the registered mark, because “[b]y virtue of the fact that the Prior Registrant
filed a design mark rather than a word mark, he has only availed himself and the
consuming public of the protections afforded by the overall commercial impression
of the whole design mark.”5 Applicant cites Gruner + Jahr USA Pub. v. Meredith
Corp., 26 USPQ2d 1583 (2d Cir. 1993) and In re Produits de Beaute-Parfums Jean
D’Aveze, 225 USPQ 283 (TTAB 1984) as cases in which stylization and design
elements in registered marks were given substantial weight in finding a lack of
likelihood of confusion. A mark that is registered in stylized or design form is
entitled to protection not only against marks that are similarly stylized or that
contain similar designs. The test under Section 2(d) is always whether a mark “so
resembles” a prior mark “as to be likely … to cause confusion….” 15 U.S.C. §
1052(d). Both Gruner + Jahr and Produits de Beaute are consistent with this
principle; in both cases, a difference of stylization was only one factor considered in
the analysis of the similarity or dissimilarity of the marks. In this case,
ANTOURAGE is fanciful as applied to clothing stores, and the mark as a whole, of
which the word ANTOURAGE is clearly the dominant element, is entitled to a
broad scope of protection.
In sum, the factor of the similarity or dissimilarity of the marks weighs in
favor of a finding of likelihood of confusion.

5 Reply brief at 3.
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4. Conditions of purchase.
Applicant contends that weight should be given to “the inherent
sophistication exercised by patrons of clothing boutiques for women’s clothing.”6
Applicant argues:
Generally speaking, apparel is not inexpensive to
purchase and, consequently, consumers of apparel
commonly exercise a great deal of care in making
purchasing decisions. Also, consumers of women’s
apparel especially tend to be brand and source conscious.
For these reasons, the Appellant submits that purchasers
exposed to the marks should be considered sophisticated
consumers capable of readily recognizing distinguishing
features of quality and design of the goods and services as
well as the marks used to identify the sources….7

Applicant’s argument addresses the care with which customers will select
clothing; a more relevant argument would relate to the care with which they select
store services. Even assuming that costly women’s clothing is selected with care,
there is nothing in the record that addresses the degree of care that goes into the
selection of which boutique to shop in. In any event, we cannot assume that
applicant’s boutique services will feature only costly clothing, because there is
nothing in applicant’s recitation of services regarding the cost of the goods to be
offered. See Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). Similarly, there is nothing in the cited
registration regarding the cost of the goods offered. We must therefore assume that
the clothing store services of applicant and registrant may also feature apparel that

6 Applicant’s brief at 12.
7 Id. at 13.
Serial No. 85651045

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is inexpensive. See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), citing Kalart
Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958). There is also nothing
in applicant’s recitation of services, nor is there any evidence, to indicate that
customers of applicant are particularly sophisticated in selecting clothing store
services. Members of the general public are the consumers of clothing store
services, and they cannot be deemed to be the sophisticated purchasers that this du
Pont factor contemplates, the way that purchasers of technical products, for
example, would be deemed sophisticated or particularly knowledgeable about the
goods or services. In the case before us, where the services are identical and the
marks may be given the same or closely similar pronunciations, even a careful
customer hearing the marks of applicant or registrant is likely to be confused.
In sum, the factor of conditions of purchase is at best neutral.
5. Balancing the factors.
Having considered the arguments and evidence of record and all relevant du
Pont factors, including those not specifically discussed herein, we find that
applicant’s mark, used in connection with applicant’s services, so closely resembles
the registered mark as to be likely to cause confusion, mistake or deception as to the
source of applicant’s services.
Decision: The refusal to register is affirmed.