Interbaltica

Trademark Trial and Appeal BoardJun 24, 2021

79245162 (T.T.A.B. Jun. 24, 2021)

Mailed: June 24, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Interbaltica _____ Serial No. 79245162 _____ Andrew Zulieve of Skelton Taintor & Abbott, for Interbaltica. Jonathan Falk, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Cataldo, Mermelstein and English, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, Interbaltica, seeks registration on the Principal Register of the mark FRUGUE in standard characters, identifying the following goods, as amended, “women’s clothing, namely bras, sold exclusively on-line” in International Class 25.1 The Trademark Examining Attorney has refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as 1 Application Serial No. 79245162 was filed on October 4, 2018 under Section 66(a) of the Trademark Act, 15 U.S.C. § 1116(a), seeking an extension of protection of its International Reg. No. 1368731, issued on August 8, 2017. This Opinion is not a Precedent of the TTAB Serial No. 79245162 - 2 - used in connection with the identified goods, so resembles the mark FRUGI, previously registered on the Principal Register in standard characters, identifying the following goods: Adult clothing, namely, jumpers, sweatshirts, t-shirts, tops, cardigans, dresses, skirts, trousers, jeans, dungarees, tights, leggings, socks, sleepwear, pajamas, vests; Children’s clothing, namely, jumpers, sweatshirts, t-shirts, tops, cardigans, dresses, skirts, trousers, shorts, skorts, jeans, dungarees, gilets, tights, leggings, coats, hats, bibs not of paper, socks, one-piece clothing for infants and toddlers, rompers, body suits, sleepwear, pajamas, vests, briefs, trunks, scarves, gloves; Children’s headwear in International Class 25,2 as to be likely to cause confusion, to cause mistake, or to deceive. After the Examining Attorney made the refusal final, Applicant appealed to this Board and filed a request for reconsideration, which was denied. We affirm the refusal to register. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). 2 Registration No. 4409869 issued on October 1, 2013 with the following translation: “The English translation of the word ‘FRUGI’ in the mark is ‘fruits of the earth’ in Latin.” The registration also recites services in Class 35. Section 8 and 15 affidavits accepted and acknowledged. Serial No. 79245162 - 3 - We have considered each DuPont factor that is relevant. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered.”)); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less weighty roles in any particular determination”). Two key considerations are the similarities between the marks and the relatedness of the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks”); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018). 1. Relatedness of the Goods and Channels of Trade The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration,” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 Serial No. 79245162 - 4 - (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A proper comparison of the goods considers whether “the consuming public may perceive [the respective goods or services of the parties] as related enough to cause confusion about the source or origin of the goods and services.” Hewlett Packard, 62 USPQ2d at 1004. Therefore, to support a finding of likelihood of confusion, it is not necessary that the goods be identical or even competitive. It is sufficient that the goods are related in some manner, or that the circumstances surrounding their marketing are such that they would be encountered by the same persons in situations that would give rise, because of the marks, to a mistaken belief that they originate from the same source or that there is an association or connection between the sources of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). Applicant’s goods are “women’s clothing, namely bras, sold exclusively on-line” and the cited registration recites “Adult clothing, namely, jumpers, sweatshirts, t- shirts, tops, cardigans, dresses, skirts, trousers, jeans, dungarees, tights, leggings, socks, sleepwear, pajamas, vests” in addition to numerous items of children’s clothing. In support of the refusal of registration, the Examining Attorney introduced with his May 8, 2019 Final Office Action3 printouts from the following third-party Internet websites offering under the same mark goods identified in the subject application and cited registration. 3 At .pdf 8-19. Serial No. 79245162 - 5 - Victoria’s Secret provides bras, sleepwear and pajamas; American Eagle provides bras, sleepwear and pajamas; Gap provides bras, t-shirts and tops; Forever 21 provides bras, pajamas and sleepwear; Abercrombie & Fitch provides bras, sleepwear and pajamas; and J. Crew provides bras and pajamas. This evidence demonstrates that at least six third parties offer both Applicant’s goods and certain of the goods identified in the cited registration under the same mark and that consumers would readily expect that these goods could emanate from the same sources. Moreover, “[i]f [goods] are found to be complementary in that they are sold in the same stores to the same consumers for the same, related or complementary end use, consumers are likely to be confused upon encountering the goods under the same or similar marks even though the goods may be found in different areas within a store. In re Davia, 110 USPQ2d 1810, 1816 (TTAB 2014)). We find that the same rationale applies to complementary goods offered for sale on different pages of websites. Applicant’s bras are the types of clothing items that would be worn with the t-shirts, tops, pajamas and sleepwear identified in the cited registration. “Thus, they are functionally related. ... Such complementary use has long been recognized as a relevant consideration in determining a likelihood of confusion.” Id. at 1815. Applicant argues that [E]ven though Registrant’s mark is intended for a wide variety of goods, they are detailed specifically naming certain concrete categories of Serial No. 79245162 - 6 - clothing and/or clothing items. Subsequent conclusion follows, that the Registrant was deliberate in naming and specifying clothing types because they represent the intended use for the Registrant’s mark and broader categorization would not represent the intended use [of] the mark. Accordingly, none of said categories or types [of] clothing items could be considered as equivalent to or as encompassing women’s clothing, namely bras (Applicant’s clothing).4 However, it is not necessary for Applicant’s goods to be “equivalent to,” “encompass” or otherwise include identical clothing items, in order to find that the goods are related. The question is whether the goods are sufficiently related such that, if similar marks are used thereon, consumers are likely to believe that the products emanate from the same source. Thor Tech Inc., 90 USPQ2d at 1635. We recognize that consumers may be able to distinguish Applicant’s goods from the goods in the cited registration; however, that is not the standard. See, e.g., Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the confusion found to be likely is not as to the products but as to their source”) (citation omitted); In re Anderson, 101 USPQ2d at 1919. The respective goods need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that [the goods and/or services] emanate from the same source.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984). 4 Applicant’s brief; 4 TTABVUE 21. Serial No. 79245162 - 7 - The third DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161 (quoting DuPont, 177 USPQ at 567). Applicant argues that it is noteworthy that the Applicant specifies under the description of the FRUGUE mark that the goods sold under the mark are sold via one specific channel of trade – exclusively on-line. This means Applicant is limited to a very narrow channel of trade, whilst the Registrant has the opposite, a full range of trade channels. For this reason consequent conclusion can be made that goods of the Applicant and the Registrant are largely sold in different venues and with regards to the trade channel shared by both Applicant and the Registrant, both sellers have a certain informed consumer, i.e. reasonable consumer, who not only is aware of the goods sold under the marks, but actively seeks to purchase them, and thus would certainly distinguish FRUGUE mark and the Registrant’s mark.5 Applicant’s argument misapprehends the third DuPont factor. Because there are no limitations as to channels of trade or classes of purchasers in the recitation of goods in the cited registration, we must presume that Registrant’s goods move in all channels of trade normal for such goods and are available to all potential classes of ordinary consumers thereof. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). As noted above, the Examining Attorney has introduced evidence that both Applicant’s goods and Registrant’s goods are offered for sale on the same webpages. This evidence supports a finding that these goods are offered in the same channels of 5 4 TTABVUE 18-19. Serial No. 79245162 - 8 - trade. The significance of the overlapping trade channels of the involved goods is not diminished by the fact that the goods in the cited registration may be encountered in any other normal trade channel. For purposes of our determination, it is the identifications of goods that controls, not what unsupported argument or even, if it was present, extrinsic evidence may show about the specific nature of the goods as provided in the marketplace.6 Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162; In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165 (TTAB 2013); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). We find that the DuPont factors of the relatedness of the goods, channels of trade and consumers, in this case, women who purchase bras and other items of women’s clothing, weigh in favor of likelihood of confusion. 2. Variety of Goods on Which a Mark is or is not Used One of the circumstances mentioned in the ninth DuPont factor is the variety of goods on which a prior mark is used. See, e.g., In re Wilson, 57 USPQ2d 1863, 1867 (TTAB 2001) (use on a wide variety of goods weighs in favor of likelihood of confusion). Applicant argues the greater variety of goods used with the registered mark, the higher chance that there will be confusion with a later applicant for the same mark on goods similar to any of the variety of goods used sold by the prior registrant. In turn it can be argued that the less variety of goods used with the applied for mark, the lower the chance that there will be confusion with a prior registrant for the same mark on goods similar to any of the variety of goods used sold by the later applicant. In this case, Applicant’s mark is intended for selling very specific and very narrow product category - women’s clothing namely, namely [sic] bras, which 6 For this reason we find unpersuasive Applicant’s arguments seeking to limit the goods in the cited registration to “organic clothing for family.” 4 TTABVUE 22. Serial No. 79245162 - 9 - are sold through a limited trade channel, limiting the exposure even more. This very limited variety of goods sold under the FRUGUE mark, means that the reasonable consumer would be able to identify the source of such goods.7 While use on a wide variety of goods (such as with a “house mark” or “family of marks”) weighs in favor of likelihood of confusion, see, e.g., Wilson, 57 USPQ2d at 1867, Applicant has cited no cases, and we are not aware of any, that stand for the converse proposition. We thus are not persuaded that the limitation of Applicant’s goods to bras and the limitation of the goods in the cited registration to items of adult and children’s clothing decreases either the relatedness of the goods or the likelihood of confusion between similar marks used on or in connection with such goods. The ninth DuPont factor is neutral. 3. Strength of the Cited Mark / Number and Nature of Similar Marks Next, we evaluate the strength of the registered mark and the scope of protection to which it is entitled. The fifth DuPont factor is the “fame” or strength of the prior mark, and the sixth factor is the number and nature of similar marks in use for similar goods or services. Du Pont, 177 USPQ at 567. In determining strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). 7 4 TTABVUE 21. Serial No. 79245162 - 10 - Turning first to inherent strength, the term FRUGI is defined in the registration as meaning “fruits of the earth.” Thus, we find on this record that FRUGI at most evokes something from the earth and thus appears arbitrary as applied to the recited goods. Cited Reg. No. 4409869 issued on the Principal Register without a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. §1052(f), and we must accord the cited registration the presumption of validity provided for under Section 7(b) of the Trademark Act, 15 U.S.C. §1057(b). We thus presume that the FRUGI mark is inherently distinctive with no need to acquire secondary meaning. There is no evidence regarding the mark’s commercial or marketplace strength. Further, in an ex parte appeal, the owner of the cited registration is not a party, and the Examining Attorney is under no obligation to demonstrate exposure to or recognition of the cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). For that reason, “in an ex parte analysis of the du Pont factors for determining likelihood of confusion …, the ‘[commercial strength] of the mark’ … is normally treated as neutral when no evidence as to [marketplace recognition] … has been provided.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(d)(ix) (Oct. 2018). Because there is no evidence of record regarding the commercial strength of the cited mark, this consideration is neutral. Applicant introduced into the record copies of the following six third-party registrations issued on the Principal Register to four different entities:8 8 August 10, 2020 Request for Reconsideration at 12-20. Applicant also submitted an abandoned third-party application, which possesses no probative value. See, e.g., In re Mr. Recipe, LLC, 118 USPQ2d at 1089 (third-party application is “evidence only that the Serial No. 79245162 - 11 - Reg. No. 6091784 for the mark FRUGAL DRUNKARD identifying “T-shirts;” Reg. No. 5622484 for the mark FRUGAL ATHLETE identifying “hats; hoodies; shirts;” and various entertainment services; The following registrations owned by the same entity: Reg. Nos. 3873472 and 3869741 for the mark FRUGO identifying various canned vegetables and salsa; and Reg. No. 5235135 for the mark FRUGO THE BEST FOOD FOR A HEALTHY LIFE identifying “processed vegetables” and “salsa;” and Reg. No. 4464373 for the mark FRUGO identifying various fruit drinks, juices, soft drinks, mineral waters and syrups therefor. None of the marks in these third-party registrations consist in whole or in part of the term FRUGI. The two of the third-party registrations that identify clothing items include the term FRUGAL which has a recognized meaning. The others consist in their entirety or include the word FRUGO, which the third-party registrations indicate has no known meaning. Evidence of the Trademark Office’s registration of marks unrelated to the marks at issue or somewhat related marks for unrelated goods is not probative of the relative strength of the cited mark. Cf. In re I.AM.Symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (third-party registrations for identical marks reciting unrelated goods not probative of weakness of mark). In addition, we are not privy to the prosecution histories of these third-party registrations or any agreements or consents to register between the owners thereof. application was filed on a certain date”); Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003). Serial No. 79245162 - 12 - It further is established that the Board is not bound by the prior decisions of examining attorneys, and each case must be decided on its own merits. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001). Based upon the totality of the record evidence, we find that the registered mark is arbitrary and thus inherently distinctive as applied to the identified goods. There is no evidence of third-party use; and there is scant evidence of third-party registrations of similar marks for related products. Cf. Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015). We therefore find that the registered mark is entitled to the normal scope of protection to which inherently distinctive marks are entitled. See Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies along a spectrum from very strong to very weak). 4. Similarity or Dissimilarity of the Marks Under the first DuPont factor, we determine the similarity or dissimilarity of Applicant’s FRUGUE mark and the registered FRUGI mark in their entireties, taking into account their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these Serial No. 79245162 - 13 - elements may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d at 1812; accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018). “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., 101 USPQ2d at 1721 (internal quotation marks omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). And, as discussed above, the average purchasers who are likely to encounter both marks are ordinary consumers. In comparing Applicant’s FRUGUE mark and the registered FRUGI mark, the obvious points of similarity are that they contain the first four letters in common, and in the same sequence. Thus, the marks are visually similar. Furthermore, the letters the marks do not share in common are vowels similarly placed at the end of the respective marks. Both marks appear in standard characters and thus may be presented in the same or highly similar styles or fonts inasmuch as marks presented in standard characters are not limited to any particular depiction. The rights Serial No. 79245162 - 14 - associated with a mark in standard characters reside in the wording and not in any particular display. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012). While there is no correct pronunciation of trademarks, phonetically FRUGUE and FRUGI are similar and it stands to reason that the two marks will be verbalized in a similar manner by consumers. Cf. In re Teradata Corp., 223 USPQ 361, 362 (TTAB 1984) (“as we have said many times, there is no ‘correct’ pronunciation of a trademark”). Applicant asserts that the “FRUGUE mark is pronounced as [frug]”9 or “froog.” Applicant further asserts that FRUGI is a Latin term and “there is a correct pronunciation for the Registrant’s mark.”10 However, we question the extent to which U.S. consumers would be aware that FRUGI is a Latin term, or would otherwise be familiar with its pronunciation or meaning. Further, there is no pronunciation of record for the registered mark.11 A pronunciation of “froogee” or other likely pronunciation nonetheless would be highly similar to the asserted pronunciation of Applicant’s mark. As noted above, the registration for the FRUGI mark indicates that the term connotes fruits of the earth. Applicant argues that 9 4 TTABVUE 14. 10 4 TTABVUE 14. 11 April 2, 2020 Response to Office Action at 25 includes definitions for “frugi” and an audio link to hear the pronunciation, but no pronunciation is provided. We have made clear that providing hyperlinks to Internet materials is insufficient to make such materials of record. In re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB 2017); see also In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (stating that “a reference to a website’s internet address is not sufficient to make the content of that website or any pages from that website of record”). Serial No. 79245162 - 15 - In 2018 The 41st annual National Latin Exam was administered to 131,787 students all across the United States. 143,952 students were registered for the exam, while 91.5% actually sat for the exam, See Third RFR Exhibit H.12 Given the fact that said exam is being held annually for 41st time, the conclusion of Latin language prevalence in United States could be established.13 We observe, however, that Latin is recognized as “an Italic language spoken in ancient Rome, fixed in the 2nd or 1st century b.c., and established as the official language of the Roman Empire.”14 The Latin language is not currently spoken outside of academics, scholars and certain religious ceremonies. In addition, there is no evidence that FRUGI is a widely-known Latin term used by speakers in the U.S., such as “carpe diem,” “quid pro quo” or “caveat.” As a result, we find insufficient support for Applicant’s contention that an appreciable number of U.S. consumers would understand the meaning of the registered FRUGI mark. Applicant further contends that its FRUGUE mark “is a derivation from [a] popular dance in the mid 1960s called ‘frug.’”15 However, the evidence of record fails to indicate that Applicant attempts to associate its FRUGUE mark with the dance known as the “frug.” For example, a page from Applicant’s website displays the FRUGUE mark but makes no mention of the “frug” dance.16 Further, the evidence of record fails to establish that 12 April 2, 2020 Response to Office Action at 26. 13 4 TTABVUE 14. 14 Dictionary.com, accessed on June 24, 2021, definition from Collins English Dictionary (2012). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format, definitions in technical dictionaries, translation dictionaries and online dictionaries, and we elect to do so here. See In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n. 23 (TTAB 2013). 15 4 TTABVUE 15; April 2, 2020 Response to Office Action at 19-24. 16 April 2, 2020 Response to Office Action at 29. Serial No. 79245162 - 16 - Applicant’s customers will associate the FRUGUE mark with the “frug” dance. We note in addition Applicant’s acknowledgement that “this dance was popular over 50 years ago”17 while nonetheless arguing that U.S. consumers will be aware of the meaning of its mark. As a result, in order for U.S. consumers to discriminate between the meanings of the involved marks, they must be sufficiently fluent in Latin to recognize and translate the term FRUGI, and also associate FRUGUE with the dance known as the “frug” popular during the 1960s. While the meanings of these terms differ to those who might understand them, we find it more likely on this record that the average U.S. consumer will perceive FRUGUE and FRUGI as coined terms having no recognized meaning. We find that the comparatively minor differences between the marks are outweighed by their similarity in appearance and sound. The marks’ meanings and their differences are unlikely to be understood by most consumers. Considered in their entireties, we find that the marks convey overall commercial impressions that are more similar than dissimilar. This DuPont factor thus supports a finding that confusion is likely. 5. Conditions of Sale Under the fourth DuPont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567. 17 4 TTABVUE 15. Serial No. 79245162 - 17 - Applicant argues It is noteworthy to point out that the relevant jurisprudence distinguishes precisely reasonable consumer as the subject discerning whether the marks are confusingly similar as opposed to the average consumer or normal consumer. This distinction expressis verbis means that the reasonable consumer has the higher capacity of making said judgement on similarity.18 Whereas, thorough examination of the only shared channel of trade for the FRUGUE mark and the Registrant’s mark, i.e. on-line, would only further signify that likely purchaser of the respective goods would be reasonable enough to not be confused as to as to source or sponsorship of said goods under the marks. This argument is i.e. supported by the 2017 Global Online Consumer Report “The Truth About Online Consumers” by KPMG, see Third RFR Exhibit L.19 The data in this report suggest that among the main factors driving the purchases on- line by the consumers in North America are: brand (26%), online reviews (17%), product features (15%) and other factors (influence of peers and etc.) (15%). Which means that the absolute majority of the factors for a consumer when making a decision on buying goods on-line are research- based as opposed uneducated or impulse-based. Consequently, the main conclusion which can be drawn from this data is that consumers who usr [sic] the on-line trade channel to buy goods show a reasonably high degree of multilayer knowledge regarding the respective good which they are purchasing, therefore, it has to be taken into account when deciding on the likelihood of confusion.20 Aforementioned 2017 Global Online Consumer Report “The Truth About Online Consumers” by KPMG, see Third RFR Exhibit M,21 states that products which consumers buy on-line on impulse are usually consumables, i.e. products that consumers buy repeatedly, or sometimes buy impulsively on trial. It is evidenced by the figures which show that the most impulsive categories for the consumers are food/groceries (51%), beer (49%), pharmacy/healthcare (46%), wine (44%), books/music (43%), pet food and supplies (41%) and liquor (36%). Women’s clothing, namely bras (which are sold under the FRUGUE mark), clearly do not fall under these categories as this is a long-life-cycle good, which in turn 18 4 TTABVUE 19. 19 Applicant’s April 2, 2020 Response to Office Action at 30. 20 4 TTABVUE 19. 21 Applicant’s April 2, 2020 Response to Office Action at 31. Serial No. 79245162 - 18 - means that the consumer purchasing it is likely to be more deliberate rather than acting on an impulse, thus it is unlikely that the consumer would be confused as to the source of the marks in this regard.22 However, the goods identified in the cited registration are not restricted by trade channel and will be available to all purchasers interested in these goods. Further, neither Applicant’s goods nor those identified in the cited registration are restricted by price point. While some purchasers may be discriminating and exercise care in their selection, others may not exercise as great a degree of care. The goods at issue are ordinary items of women’s clothing, and as such include goods sold to a very broad range of consumers at a broad range of price points. Nothing about the identified goods suggests that the consumers are particularly sophisticated or that the conditions of sale would mitigate any confusion that would otherwise be likely. The mere fact that purchasers may be able to distinguish between the products is immaterial. As noted above, the issue is confusion as to the source of the products, and the standard of care is that of the least sophisticated potential purchaser. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our decision to be based on the least sophisticated potential purchasers.”)). In the absence of any evidence relating to the degree of care purchasers exercise with regard to clothing goods, the similarity of the marks and relatedness of the goods outweigh Applicant’s assertion that purchasers are sophisticated or careful in their purchases. See HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 22 4 TTABVUE 20. Serial No. 79245162 - 19 - 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decisions, and expensive goods). Moreover, were we to accord a level of sophistication to the purchasers of the goods at issue, even sophisticated purchasers are not immune from source confusion. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers...are not infallible.”)). 6. Summary Considering all the evidence of record, including any evidence not specifically discussed herein, we find that the marks in their entireties are more similar than dissimilar and that the identified goods are related and will be encountered by the same consumers in a common channel of trade at all price points. Applicant’s evidence of third-party registration of somewhat similar marks is insufficient to weigh in favor of a finding of no likelihood of confusion. We find therefore that Applicant’s mark is likely to cause confusion with the mark in the cited registration when used in association with the identified goods. Decision: The refusal to register Applicant’s mark on the ground of likelihood of confusion is affirmed.