Great Earth Companies, Inc.v.Intimate Beauty Corporation

Trademark Trial and Appeal Board

Sep 26, 2005

No. 91160752 (T.T.A.B. Sep. 26, 2005)

WINTER/GREENBAUM Mailed: September 26, 2005

Opposition No. 91160752
GREAT EARTH COMPANIES, INC.
v.
INTIMATE BEAUTY CORPORATION

Before Hohein, Rogers, and Zervas,
Administrative Trademark Judges

By the Board:

Applicant, Intimate Beauty Corporation d/b/a Victoria's
Secret Beauty, seeks to register the mark “GREAT BODY” for
use in connection with various personal body care products.1

1 Application Serial No. 78284374 was filed on August 7, 2003 and
seeks registration under Section 1(b) of the Trademark Act. The
goods set forth therein are as follows: personal care products,
namely, aftershave gels, aftershave lotion, antiperspirant,
artificial nails, astringent for the face, astringent for the
skin, bath beads, bath oil, bath salts, blush, body glitter, body
mist, body oil, body scrub, body wash, bubble bath, cologne,
cream for the body, cream for the cuticles, cream for the eyes,
cream for the face, cream for the feet, cream for the hands,
deodorants for personal use, essential oils for personal use,
exfoliating preparations for the skin, eye gels, eye makeup
pencils, eye masks, eye shadow, face highlighter, face masks,
face mist, face scrub, non-medicated foot soaks, face toners,
foundation, fragrant body splash, fragrant body mist, hair
conditioner, hair dyes, hair glitter, hair highlighter, hair
mascara, hair pomade, hair rinses, hair removing creams, hair
shampoo, hair spray, hair straightener, hair styling gel, hair
styling mousse, lotion for the body, lotion for the face, lotion
for the feet, lotion for the hands, lip balm, lip gloss, lip
liner, lip makeup pencils, lipstick, makeup for the body, makeup
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B.
Opposition No. 91160752

2
Great Earth Companies, Inc. opposes registration on the
grounds that applicant’s mark, when used on the goods
identified in the application, will cause a likelihood of
confusion among consumers, in view of opposer’s previously
used and registered mark “GREAT BODY” for “dietary food
supplements.”2
In its answer, applicant denied the salient allegations
in the notice of opposition and alleged, as putative
affirmative defenses, that the goods on which it intends to
use the mark are not related to opposer’s goods, and that
the channels of trade for the parties’ respective goods are
different because applicant only intends to sell its “GREAT
BODY” personal care products in its “VICTORIA’S SECRET”
retail stores, its mail order catalogs, and on-line at the

for the face, makeup remover, mascara, massage cream, massage
lotion, massage oil, nail polish, nail polish remover, nail
stencils, non-medicated blemish stick, non-medicated cleanser for
the face, non-medicated foot spray, non-medicated massage
ointment, oil blotting sheets for the skin, perfume, powder for
the body, powder for the face, powder for the feet, pumice stones
for personal use, salt scrubs for the skin, shaving cream,
shaving gels, shower cream, shower gel, skin bronzing cream, soap
for the body, soap for the face, soap for the hands, sun block
for the body, sun block for the face, suntan lotion for the body,
suntan lotion for the face, sunless tanning lotion for the body,
sunless tanning lotion for the face, pre-suntanning lotion for
the body, pre-suntanning lotion for the face, post-suntanning
lotion for the body, post-suntanning lotion for the face and
talcum powder.

2 Reg. No. 1333943, issued on May 7, 1985, claiming dates of
first use anywhere and first use in commerce in February 1984.
Sections 8 & 15 affidavits accepted and acknowledged.

Opposition No. 91160752

3
“VICTORIA’S SECRET” website, located at
http://www.victoriassecret.com.
This case now comes up on opposer’s motion for summary
judgment filed on September 30, 2004, on the issue of
likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. 1052(d). The parties have fully briefed the
issue,3 and we have considered opposer’s reply brief. See
Trademark Rule 2.127(a).
Standard of Review
Summary judgment is an appropriate method of disposing
of cases in which there are no genuine issues of material
fact in dispute, thus leaving the case to be resolved as a
matter of law. See Fed. R. Civ. P. 56(c). A dispute as to
a material fact is genuine only if a reasonable fact finder
viewing the entire record could resolve the dispute in favor
of the nonmoving party. See Olde Tyme Foods Inc. v.
Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir.
1992). In deciding a motion for summary judgment, the Board
must view the evidence in the light most favorable to the
nonmovant, and must draw all reasonable inferences from
underlying facts in favor of the nonmovant. Id.
A party moving for summary judgment has the burden of
demonstrating the absence of any genuine issue of material

3 The parties’ stipulation (filed October 29, 2004) to extend the
time for applicant to respond to the motion for summary judgment
until December 2, 2004, is approved.
Opposition No. 91160752

4
fact, and that it is entitled to summary judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317
(1986), and Sweats Fashions Inc. v. Pannill Knitting Co.
Inc., 833 F.2d 1560, 4 USPQ2d 1793 (Fed. Cir. 1987). When
the moving party’s motion is supported by evidence
sufficient to indicate that there is no genuine issue of
material fact, and that the moving party is entitled to
judgment, the burden shifts to the nonmoving party to
demonstrate the existence of specific genuinely-disputed
facts that must be resolved at trial.
The nonmoving party may not rest on the mere
allegations of its pleadings and assertions of counsel, but
must designate specific portions of the record or produce
additional evidence showing the existence of a genuine issue
of material fact for trial. In general, to establish the
existence of disputed facts requiring trial, the nonmoving
party “must point to an evidentiary conflict created on the
record at least by a counterstatement of facts set forth in
detail in an affidavit by a knowledgeable affiant.” Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 941, 16 USPQ2d 1783, 1786 (Fed. Cir. 1990), citing
Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd.,
731 F.2d 831, 836, 221 USPQ 561, 564 (Fed. Cir. 1984). If
the nonmoving party fails to make a sufficient showing on an
essential element of its case with respect to which it would
Opposition No. 91160752

5
have the burden of proof at trial, judgment as a matter of
law may be entered in favor of the moving party. Fed. R.
Civ. P. 56(c). Celotex Corp., 477 U.S. at 322-323.
Opposer’s Evidence
In support of its motion for summary judgment, opposer
argues that there is no genuine issue of material fact
inasmuch as the marks are identical, the goods are closely
related, and the channels of trade are identical. As
evidence thereof, opposer submitted the following:
(1) a “Notice of Reliance”4 to which are attached
USPTO TARR5 database printouts regarding opposer’s pleaded
registration for the mark “GREAT BODY,”6 opposer’s
assertedly related registrations for trademarks and service
marks that contain the term “GREAT,”7 and third-party

4 Opposer did not need to submit the referenced materials under a
notice of reliance in order to make them of record for present
purposes. Rather, for purposes of a motion for summary judgment,
the materials may be submitted as attachments or exhibits to a
party’s brief on the motion. See Trademark Rules 2.122(b),
2.122(d)(2), 2.122(e), 2.122(f), and 2.127(e)(2). TBMP §
528.05(a) (2d ed. rev. 2004).

5 Trademark Application and Registration Retrieval (TARR),
http://tarr.uspto.gov/.

6 See supra note 2 regarding opposer’s pleaded registration, Reg.
No. 1333943.

7 Opposer’s other registrations referenced in its “Notice of
Reliance” that contain the term “GREAT” include the following:
“GREAT EARTH” (Reg. No. 975801, issued January 1, 1974, claiming
March 9, 1972 as its dates of first use anywhere and first use in
commerce for “vitamin and mineral supplements,” Sections 8 & 15
affidavits accepted and acknowledged; and Reg. No. 1206686,
issued August 31, 1982, claiming dates of first use anywhere and
first use in commerce in April 1971 for various nutritional
supplement and body care products, Sections 8 & 15 affidavits
Opposition No. 91160752

6
registrations that set forth the same or related goods as
those referenced in opposer’s pleaded registration and in
the subject application;
(2) status and title copies8 of opposer’s above-
referenced pleaded and assertedly related registrations,
which show that such registrations are subsisting and owned
by opposer;

accepted and acknowledged); “GREAT EARTH” with Earth design (Reg.
No. 1282027, issued on June 19, 1984, claiming January 10, 1976
as the dates of first use anywhere and first use in commerce,
Sections 8 & 15 affidavits accepted and acknowledged); “GREAT
EARTH” with stylized globe design (Reg. No. 1626545, issued on
December 11, 1990, claiming dates of first use anywhere and first
use in commerce in July 1989 for body and skin care products, and
claiming dates of first use anywhere and first use in commerce in
January 1989 for various dietary supplements and healthcare
products, Sections 8 & 15 affidavits accepted and acknowledged);
“GREAT SHAPE” (Reg. No. 1181818, issued on December 15, 1981,
claiming June 17, 1980 as its dates of first use anywhere and
first use in commerce, for a dietary supplement; Reg. No.
1598051, issued on May 29, 1990, claiming July 26, 1988 as its
date of first use anywhere and August 18, 1988 as its date first
use in commerce, for various body care preparations, and claiming
June 17, 1980 as its dates of first use anywhere and in commerce
for dietary and nutritional supplements and liquid meal
replacements; and Reg. No. 2510624, issued on November 20, 2001,
claiming dates of first use anywhere and first use in commerce in
June, 2000 for magazines, newsletters and informational sheets in
the fields of dietary supplements, health, nutrition, and the
like); and “GREAT BREAKFAST” (Reg. No. 1644924, issued on May 21,
1991, claiming April 16, 1990 as its dates of first use anywhere
and first use in commerce for dietary and nutritional supplements
in the form of a drink mix).

8 The Board acknowledges receipt of the status and title copies
of opposer’s registrations, which were submitted on October 12,
2004, after opposer filed its motion for summary judgment. The
Board prefers that an opposer, as the moving party, provide a
status and title copy of its pleaded registration(s) with the
notice of opposition under Trademark Rule 2.122(d)(1), or with
the summary judgment motion. See TBMP § 528.05(d)(2d ed. rev.
2004). The Board discourages piecemeal submissions for summary
judgment motions.

Opposition No. 91160752

7
(3) declarations of Mel Rich, President of Phoenix
Laboratories, Inc. (“Phoenix”), and Hallie Rich, a Phoenix
employee, to which are attached numerous exhibits, including
information downloaded from the Internet; and
(4) the declaration of Jay Geller, opposer’s counsel.
In Mr. Rich’s declaration, he states that Phoenix is
related to opposer in that Phoenix and opposer are currently
owned by the same parent entity, Evergood Products. He
states further that Phoenix has continuously manufactured
dietary supplements for opposer and its predecessor–in-
interest, Great Earth International, Inc., since 1983.
Attached to his declaration are, inter alia, printouts from
several websites on the Internet, which are offered in
support of opposer’s contention that nutritional supplements
and personal body care products have been advertised in
connection with the same marks at the same websites on the
Internet.
The declaration of Ms. Rich, which was submitted as an
attachment to opposer’s reply brief, comprises a series of
statements documenting her Internet research on and
telephone calls to various companies to confirm that they
sell both cosmetics and supplements. Attached to the
Opposition No. 91160752

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declaration are exhibits of downloaded materials printed in
connection with Ms. Rich’s searches on the Internet.9
Internet Evidence
Applicant objects to the Internet evidence attached to
Mr. Rich’s declaration, arguing that this evidence is
“improperly authenticated hearsay” under Fed. R. Evid.
801.10 In regard to the objection that the Internet
evidence was not properly authenticated, we disagree with
applicant’s argument. See Fed. R. Civ. P. 56(e). Internet
materials submitted for purposes of summary judgment may be
authenticated by an affidavit or declaration of the person
who accessed the information on the Internet and who can
identify the materials, including the nature, source and
date of the materials. See Raccioppi v. Apogee, Inc., 47
USPQ2d 1368, 1371 (TTAB 1998)(personal knowledge of content
is not required; only the source of the information must be
within the personal knowledge of the declarant). See also
TBMP §§ 528.05(b) and (e) (2d ed. rev. 2004). Mr. Rich’s

9 Ms. Rich’s declaration has little probative value inasmuch as
she did not ask during her telephone calls whether any of the
companies sell dietary supplements and cosmetic products under
the same mark. Further, the Internet evidence attached thereto
was largely repetitive of the evidence attached to the
declaration of Mr. Rich and, thus, merits only limited
consideration.

10 Applicant specifically alleged that the Internet materials are
“improperly authenticated hearsay under Federal Rule of Evidence
801 as they are being offered by Mr. Rich for the truth of the
assertion” contained therein, namely, that the sites depicted do
actually sell the products displayed (see applicant’s opposition
to the motion for summary judgment, page 7, n.4).
Opposition No. 91160752

9
declaration satisfies the requirements for authentication.
To the extent that applicant objects to the Internet
evidence as hearsay, the Board regards the Internet evidence
for what it shows on its face, i.e. that the information was
available to the public at the time the declarant accessed
the Internet, and not as evidence of the truth of the
statements made therein. For that reason, hearsay is not an
issue with regard to the summary judgment motion. Instead,
“the reliability of the information becomes a matter of
weight or probative value” to be given to the proffered
evidence by the Board. Raccioppi, 47 USPQ2d at 1371.
Priority
Inasmuch as opposer has pleaded a valid and subsisting
registration for the mark “GREAT BODY,” and has submitted a
status and title copy thereof showing that the registration
is currently subsisting and owned by opposer, priority is
not an issue in this proceeding. See King Candy Company v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).11

11 Mr. Geller’s declaration includes a single exhibit that
comprises segments of applicant’s answers to opposer’s first set
of written interrogatories, and specifically highlights the
interrogatory wherein opposer requested that applicant identify
all products on which it has used the mark “GREAT BODY.”
Presumably, opposer submitted this evidence in support of its
claim of priority and, specifically, in support of its contention
that applicant has not commenced use of the mark “GREAT BODY” for
any goods. Inasmuch as priority is not an issue in this
proceeding, the Board need not address this evidence.

Opposition No. 91160752

10
Likelihood of Confusion
As with any case in which likelihood of confusion
is at issue, we analyze whether there exists a
likelihood of confusion under the thirteen factors set
forth in In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 1361, 177 USPQ 563, 567 (CCPA 1973). See also In
re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003); and Recot Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed. Cir.
2000). However, while we have considered each factor
for which we have evidence, we focus our analysis
herein on the relevant du Pont factors in this
proceeding, namely, the appearance of the marks, the
related nature of the goods, and the similarity of
trade channels. Han Beauty, Inc. v. Alberto-Culver
Co., 236 F.3d 1333, 1338, 57 USPQ2d 1557, 1559-1560
(Fed. Cir. 2001).
There is no dispute that the parties’ marks, “GREAT
BODY,” are identical in appearance, sound, meaning and
commercial impression. The identical nature of the marks
weighs heavily against the applicant in the likelihood of
confusion analysis. See In re Martin's Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 1566, 223 USPQ 1289, 1289-90
(Fed. Cir. 1984).
Opposition No. 91160752

11
In regard to whether the parties’ goods are related, it
is well settled that when the marks at issue are identical,
the relationship between the involved goods need not be as
great or as close as in the situation where the marks are
not identical or strikingly similar. Amcor, Inc. v. Amcor
Industries, Inc., 210 USPQ 70, 78 (TTAB 1981). It is “only
necessary that there be a viable relationship between the
goods […] in order to support a holding of likelihood of
confusion.” In re Concordia International Forwarding Corp.,
222 USPQ 355, 356 (TTAB 1983). See also Helene Curtis
Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624
(TTAB 1989)(“the greater the degree of similarity in the
marks, the lesser the degree of similarity that is required
of the products”). Moreover, “the use of identical marks
can lead to the assumption that there is a common source,”
even when goods are not competitive or intrinsically
related. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1689 (Fed. Cir. 1983).
The evidence of record establishes that there is more
than merely a viable relationship between applicant’s goods
and the goods set forth in the cited registration, such that
a reasonable consumer, when viewing the identical marks,
would be confused as to the source or sponsorship of the
goods. Id. In particular, opposer’s registrations for the
Opposition No. 91160752

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marks “GREAT EARTH,”12 “GREAT EARTH” (with Earth design)13
and “GREAT EARTH” (with stylized globe design)14 set forth
goods that are the same as, or highly similar to, the goods
identified in both the subject application and the pleaded
registration, thus illustrating that consumers would expect
the involved goods to be marketed under a single mark. In
the same manner, the following third-party registrations15
also illustrate the related nature of the parties’ goods:
• Reg. No. 286353216 for the mark “SHANKARA”, for after-
shave lotions, after-sun lotions, astringents for
cosmetic purposes, bath beads, antiperspirants,
essential oils for personal use, sun screen, sun
tanning preparations, and numerous other goods in
International Class 3, which are set forth in the
subject application; and for dietary food supplements,
nutritional supplements, and vitamin and mineral
supplements in International Class 5.

• Reg. No. 277164917 for the mark “NATURE’S PICK” (and
design) for herbal skin soap, in International Class 3,
and food supplements in International Class 5.

12 Reg. Nos. 975801 and 1206686, supra note 7.

13 Reg. No. 1282027, supra note 7.

14 Reg. No. 1626545, supra note 7.

15 Two of the nineteen third-party registrations referenced by
opposer in its “Notice of Reliance” claim Section 44(e) of the
Trademark Act, 15 U.S.C. § 1126(e), as a basis for registration,
without any use in commerce. For that reason, those
registrations were accorded little probative value by the Board.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6
(TTAB 1988).

16 Reg. No. 2863532, issued on July 13, 2004.

17 Reg. No. 2771649, issued on October 7, 2003.

Opposition No. 91160752

13
• Reg. No. 285075518 for the mark “L” with “mortar and
pestle” design, for a full line of cosmetics and
cleaning preparations, including bubble bath, shampoo,
hair styling gels, sun screen preparations, and after-
shave lotions in International Class 3, all of which
are set forth in the subject application; and for a
full line of pharmaceuticals, including dietary and
nutritional supplements, vitamin and mineral
supplements and herbal supplements in International
Class 5.

• Reg. Nos. 271375119 and 207946520 for the mark “NATURAL
MD” for, respectively, a full line of nonmedicated skin
care, hair care and nail care preparations, including
after shave lotion, antiperspirants, suntanning creams
and lotions, body and face soap, hair coloring creams
and lotions, and numerous other goods set forth in the
subject application in International Class 3; and for
dietary supplements in International Class 5.

Thus, the numerous registrations of opposer and the third-
parties show that the goods listed therein, namely, various
personal body care products and dietary and nutritional
supplements, are of a type that may emanate from a single
source in connection with the same mark. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993); In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988). Accordingly, we find that the parties’ goods are
highly related.
The evidence of record also shows that the channels of
trade of the involved goods are highly similar, if not

18 Reg. No. 2850755, issued on June 8, 2004.

19 Reg. No. 2713751, issued on May 6, 2003.

20 Reg. No. 2079465, issued on July 15, 1997, Sections 8 & 15
affidavits accepted and acknowledged.

Opposition No. 91160752

14
identical. Specifically, the Internet evidence attached to
Mr. Rich’s declaration illustrates that personal body care
products and nutritional supplements have been advertised in
connection with the same trademarks, and that such goods
have been available for on-line purchase at some of those
same websites. For example, a portion of Exhibit E to Mr.
Rich’s declaration shows that at the website of the
“Melaleuca Wellness Center” (at www.melaleuca.com), a
potential purchaser could view numerous nutritional health
supplements and body care products under the “Health” and
“Body” categories of the website, and could select any of
those products for purchase. Similarly, the segment of
Exhibit E related to “Dr. Murad” products shows that a
potential purchaser could review various skincare products
and healthcare supplements offered at the website (at
www.murad.com) and could purchase them using the website’s
“Catalog Quickorder” feature. In view of this and similar
evidence attached to Mr. Rich’s declaration, we find that
the involved goods are not only related, but they also have
highly similar, if not identical, channels of trade.
Applicant argues that opposer’s evidence is de minimus
and insufficient to show the absence of a genuine issue as
to whether the parties’ respective goods are related.
However, in stark contrast to opposer’s submission of
evidence, applicant did not designate specific portions of
Opposition No. 91160752

15
the record nor did it provide any evidence to show that
there is a genuine factual issue as to whether the
respective goods are related.21 In view of the extensive
evidence provided by opposer, applicant’s unsupported
argument is unpersuasive. See Octocom, 918 F.2d at 941, 16
USPQ2d at 1786 (Court determined that applicant’s argument
was “without evidentiary foundation” and “no more than
[applicant’s] disagreement with the board's [sic] ultimate
conclusion on the likelihood-of-confusion issue”).
Applicant also argues that there is a genuine issue of
material fact as to whether the channels of trade of the
respective goods are different because its personal body
care products will only be sold through its “VICTORIA’S
SECRET” retail stores, website and catalog. Applicant’s
argument is not well taken. It is well settled that the
determination of whether there is a likelihood of confusion
must be based on the goods as they are identified in the
involved application and pleaded registration. Octocom, 918
F.2d at 942, 16 USPQ2d at 1787. See also J & J Snack Foods
Corp. v. McDonald's Corp., 932 F.2d 1460, 1463, 18 USPQ2d
1889, 1882 (Fed. Cir. 1991); and Canadian Imperial Bank of

21 As we discussed more fully on page 4 herein, the nonmoving
party must point to an evidentiary conflict created in the
record, and cannot rely on mere allegations to show that there is
a genuine issue as to a material fact. See Octocom, 918 F.2d at
941, 16 USPQ2d at 1786.

Opposition No. 91160752

16
Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813 (Fed. Cir. 1987). Where there is no limitation on the
channels of trade in the identification of goods in either
the subject application or the pleaded registration, as in
this proceeding, it is presumed that the identifications
encompass all goods of the type described, that they move in
all normal channels of trade, and that they are available to
all potential customers. Paula Payne Products Co. v.
Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA
1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119
USPQ 139 (CCPA 1958); In re Elbaum, 211 USPQ 639, 640 (TTAB
1981). For these reasons, the mere allegation in
applicant’s answer and the contention in its brief in
opposition to the motion for summary judgment that the
channels of trade for its goods will be limited are
insufficient to raise a genuine issue of material fact.
Fed. R. Civ. P. 56(e). See Octocom, 918 F.2d at 941, 16
USPQ2d at 1786 (nonmoving party’s response was not supported
by contradictory facts). Given the unrestricted
identification of goods in the involved application and lack
of evidence from applicant to contradict the evidence
provided by opposer,22 there is no basis for the Board to

22 Notably, applicant did not plead a defense under Section 18 of
the Trademark Act, 15 U.S.C. § 1068, that there would be no
likelihood of confusion if its identification were restricted,
and applicant did not attempt to amend its application to limit
the channels of trade of its goods.
Opposition No. 91160752

17
find that a genuine issue of material fact exists as to
channels of trade.
Upon careful consideration of the pleadings, the
parties’ arguments, the evidence submitted by opposer, and
the absence of any evidence from applicant, and drawing all
justifiable inferences in favor of applicant as the
nonmoving party, we find that no genuine issue of material
fact remains for trial, that opposer has established that
there is likelihood of confusion between its mark and
applicant’s mark, and that opposer is entitled to judgment
as a matter of law.
In view thereof, opposer’s motion for summary judgment
is GRANTED.
Accordingly, the opposition is sustained, and
registration to applicant is refused.