International Luxury Inc.Download PDFTrademark Trial and Appeal BoardJan 30, 202087779772 (T.T.A.B. Jan. 30, 2020) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: January 30, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re International Luxury Inc. _____ Serial No. 87779772 _____ Bobby W. Braxton of Braxton Perrone PLLC, for International Luxury Inc. Betty Chang, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Wolfson, Shaw and English, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: International Luxury Inc. (“Applicant”) seeks registration on the Principal Register of the standard character mark EXTĒ.1 The Office refused registration on grounds that the identification of goods is unacceptable and that Applicant’s mark is likely to cause confusion with a prior registered mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). 1 Application Serial No. 87779772; filed February 1, 2018 based on an assertion of a bona fide intent to use the mark under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 87779772 - 2 - The refusal regarding the identification of goods is moot. We affirm the refusal to register under Trademark Act Section 2(d). I. Identification of Goods In its appeal brief, Applicant “agrees” with the Examining Attorney’s suggestion to amend the identification of goods in the application to:2 Articles of clothing for men women and children, namely, - pullovers, cardigans, sweaters, jerseys, jumpers, sweatshirts, parkas, bathing suits, blouses, shirts, polo shirts, trousers, leather trousers, jackets, leather jackets, quilted jackets, jeans, waistcoats, leather waistcoats, skirts, leather skirts, knitted skirts, shorts, T-shirts, dresses, knitted dresses, leather dresses, men’s suits, coats, leather coats, raincoats, overcoats, cloaks, overalls, underwear, vests, tops as clothing, singlets, bodyshirts, hosiery and panty-hoses, brassieres, loincloth, shawls, scarves, neckties, gloves, belts for clothing, shoes, boots, sandals, slippers, clogs, hats and caps being headwear. The Examining Attorney has acknowledged that the proposed amendment is sufficient and entered it.3 Accordingly, the final refusal regarding the identification of goods is moot and will be given no further consideration. See In re S. Malhotra & Co., 128 USPQ2d 1100, 1102 n.3 (TTAB 2018); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1205.01 (2019). II. Likelihood of Confusion The Examining Attorney has cited the registered mark 2 Applicant’s Appeal Brief, 4 TTABVUE 9. 3 Examiner’s Statement, 6 TTABVUE 4. Serial No. 87779772 - 3 - for the goods set forth below as a bar to registration of Applicant’s mark under Section 2(d) of the Trademark Act: Bottoms; Bottoms for babies, adults, children, women, men; Bow ties; Business wear, namely, suits, jackets, trousers, blazers, blouses, shirts, skirts, dresses and footwear; Button down shirts; Caps; Children’s and infant’s apparel, namely, jumpers, overall sleepwear, pajamas, rompers and one-piece garments; Coats; Coats for men and women; Collars; Down suits; Dress pants; Dress shirts; Dress straps; Dress suits; Dresses; Dresses for babies, adults, children, women, Dressing gowns; Evening dresses; Evening gowns; Fashion hats; Gloves as clothing; Hats; Hats for infants, babies, toddlers and children; Heavy coats; Hooded sweatshirts for babies, adults, children, women, men; Jackets; Knee-high stockings; Leather belts; Leather coats; Leather hats; Leather shoes; Long jackets; Men’s and women’s jackets, coats, trousers, vests; Men’s dress socks; Men’s socks; Men’s suits; Men’s suits, women’s suits; Men’s underwear; Pajamas; Pajamas for babies, adults, children, women, men; Panties; Panties, shorts and briefs; Pants; Pantyhose; Sashes; Scarfs; Scarves; Shawls; Shirts; Shirts and short-sleeved shirts; Shirts and slips; Shirts for infants, babies, toddlers and children; Shirts for suits; Shirts for babies, adults, children, women, men; Shoe accessories, namely, fitted decorative covers for shoes; Shoes; Short trousers; Short-sleeved or long-sleeved t-shirts; Short-sleeved shirts; Shorts; Shorts for babies, adults, children, women, men; Shoulder scarves; Silk scarves; Skirt suits; Skirts; Skirts and dresses; Skorts; Slacks; Small hats; Socks; Socks and stockings; Stockings; Suede jackets; Suit coats; Suits; Suits of leather; Suspender belts; Suspender belts for men; Suspender belts for women; Suspenders; T-shirts; T-shirts for babies, adults, children, women, men; Ties; Tights; Top coats; Tops; Tops for babies, adults, children, women, men; Trousers for babies, adults, children, women, men; Tube dresses; Tube skirts; Tube tops; Turtle neck shirts; Turtleneck pullovers; Turtleneck sweaters; Tuxedo belts; Tuxedos; Undergarment accessories, namely, removable silicone buttock enhancer pads; Undergarments; Underpants; Undershirts; Serial No. 87779772 - 4 - Underwear; Vested suits; Vests; Women’s clothing, namely, shirts, dresses, skirts, blouses; Women’s hats and hoods; Women’s shoes; Women’s shoes, namely, foldable flats; Women’s tops, namely, camis; Women’s underwear 4 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 likelihood of confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling Co. Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor that is relevant or for which there is evidence of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); 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.”). We treat as neutral any DuPont factors for which there is no record evidence or argument. In any likelihood of confusion analysis, two key considerations are the similarities between the marks and goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard 4 Registration No. 4802199; issued September 1, 2015. The registration includes the following description of the mark: “The mark consists of ‘SE’ and ‘Salvatore Exte’ with a line below ‘SALVATORE’ and a line above ‘EXTE.’” Color is not claimed as a feature of the mark. The registration also includes a statement that: “The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual.” Serial No. 87779772 - 5 - 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.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). A. Similarity or Dissimilarity of the Goods and Trade Channels and the Conditions of Sale Applicant does not dispute that both the application and cited registration cover clothing, accessories, and footwear, and overlap with respect to the following specific items: pullovers, sweaters, jumpers, sweatshirts, blouses, trousers, jackets, shirts, shorts, T-shirts, dresses, men’s suits, coats, underwear, vests, tops, shawls, pantyhose, scarves, ties, gloves, belts, shoes, hats and caps. Because the goods in the cited registration and Applicant’s application are in part identical, and otherwise highly related, and because there are no restrictions or limitations in the respective identifications, we presume that the goods travel through the same channels of trade – brick-and-mortar and online department and clothing stores – and to the same classes of purchasers. See Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical and in-part related nature of the parties’ goods, and the lack of any restrictions in the identifications thereof as to trade channels and purchasers, [the parties’] clothing items could be offered and sold to the same classes Serial No. 87779772 - 6 - of purchasers through the same channels of trade.”); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in determining likelihood of confusion); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same). Because there are no price limitations on the goods in Applicant’s application or the cited registration we also must presume that the clothing encompasses all price points, including inexpensive items. See In re i.am.symbolic, llc, 116 USPQ2d 1406, 1413 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). In addition, clothing items, including for example t-shirts, underwear, pantyhose, and shoes, covered by both Applicants’ application and the cited registration, are subject to frequent replacement. Ordinary consumers are not likely to exercise great care in purchasing inexpensive clothing items that often are replaced. Indeed, such items may be subject to impulse purchases. Recot Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.”); Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984). The overlap in goods and trade channels as well as the conditions of sale weigh heavily in favor of finding a likelihood of confusion. Serial No. 87779772 - 7 - B. Similarity or Dissimilarity of the Marks Before considering the similarity or dissimilarity of the marks in their entireties, we address a procedural issue related to this DuPont factor. In its reply brief, Applicant objects that the Examining Attorney raised a new argument on appeal that “Applicant has not previously been provided an opportunity to rebut,” namely, that “SALVATORE EXTE” in the cited mark will be perceived as a personal name.5 Applicant asserts that it “can respond to [the] new argument, but [it] must refer to a new Exhibit to do so.” The Examining Attorney has not raised a new basis for refusing registration, but has merely made an alternative argument to support the previously advanced position that the “EXTE” portion of the cited mark is dominant.6 This alternative argument may be gleaned from the record. The cited registration includes a statement that “The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual.” Such a statement is only required when a name or likeness could reasonably be perceived as that of a living individual, but is not that of a specific living individual. TRADEMARK MANUAL OF EXAMINING 5 Applicant’s Reply Brief, 7 TTABVUE 3. 6 We are not persuaded by the Examining Attorney’s original argument that “‘EXTE’ is the most distinctive wording in the registered mark” because there are seven registered marks consisting of or starting with “SE” and six registered marks incorporating “SALVATORE” for goods in International Class 25 registered to different owners, but only one third-party mark incorporating “EXTE” in International Class 25. November 16, 2018 Final Office Action at TSDR 4. Third-party registrations may be “powerful” evidence of conceptual weakness of a term or terms, but the number of registrations the Examining Attorney has cited is not particularly compelling. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015). Serial No. 87779772 - 8 - PROCEDURE § 813.01(b) (Oct. 2018). Although the better practice would have been for the Examining Attorney to have raised the argument during prosecution, the argument does not raise a new issue and should not be a surprise to Applicant. The argument is permissible. TBMP § 1203.02(b) (“[A]n examining attorney need not request remand in order to make a new argument or change the rationale for a refusal or requirement, as that is not considered to be a new refusal or requirement.”). The “new Exhibit” Applicant appears to be referencing and seeking to rely on is a purported “specimen submitted with the [cited registration]” reproduced on page 4 of Applicant’s Reply Brief.7 The purported specimen features the cited mark on a hang tag, as well as the letters “Se” used on a different part of the hang tag. Applicant argues that the specimen “shows that Registrant considers the ‘Se’ portion to be the dominant portion of the mark.”8 During prosecution, Applicant argued that “Se” is dominant in the cited mark, but Applicant did not submit Registrant’s specimen or any other evidence to support this or its other arguments, and the file of the cited registration is not automatically of record in this proceeding. In re Sela Prods., LLC, 107 USPQ2d 1580, 1583-84 (TTAB 2013). The application record should be complete before an appeal is filed. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165 n.3 (TTAB 2013) (new evidence submitted with reply brief is “untimely and therefore not part of the record for this case”); In re HSB Solomon 7 Applicant’s Reply Brief, 7 TTABVUE 5. 8 Id. Serial No. 87779772 - 9 - Assocs. LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (printouts submitted with reply brief not considered); In re Wada, 48 USPQ2d 1689 n.2 (TTAB 1998) (evidence submitted with reply brief not considered), aff’d, 194 F.3d 1297, 52 USPQ2d 1539 (Fed. Cir. 1999). Accordingly, we give Applicant’s “new Exhibit” no consideration.9 We now consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); DuPont, 177 USPQ at 567. Where, as here, the marks identify goods identical in part and otherwise closely related, the degree of similarity between the marks necessary for confusion to be likely is reduced. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); In re SL&E Training Stable, 88 USPQ2d 1216, 1218 (TTAB 2008). The issue is not whether the marks can be distinguished when subjected to a side- by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721. The focus is on the recollection of the average purchaser, who normally retains a general rather than specific impression of 9 In any event, in considering the similarities between the marks, “[w]e must compare the marks as they appear in the drawings, and not on any [actual use] that may have additional wording or information.” In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018); see also In re i.am.symbolic, 123 USPQ2d at 1749. Serial No. 87779772 - 10 - trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not predicate our analysis on a dissection of the involved marks; we consider the marks in their entireties. Stone Lion, 110 USPQ2d at 1160; 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.”). But one feature of a mark may be more significant than another, and it is not improper, for rational reasons, to give more weight to a dominant feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at 1161 (finding that the Board did not err in reasoning that the term LION was dominant in both applicant’s mark STONE LION CAPITAL and opposer’s marks LION CAPITAL and LION); In re Chatam Int’l, 71 USPQ2d at 1946. Applicant argues that the marks are dissimilar in appearance, asserting that consumers will focus on “SE SALVATORE” as the dominant portion of the cited mark because these terms: (1) form the beginning of the cited mark; and (2) are highlighted with “Se” displayed in the largest font and in bold, centered at the top of the mark, and “SALVATORE” displayed in bold and underlined.10 We acknowledge that the letters “Se” feature prominently in the cited mark and that it is often the first part of 10 Applicant’s Appeal Brief 4 TTABVUE 6-7; see also November 15, 2018 Office Action Response at TSDR 5-7. Serial No. 87779772 - 11 - a mark that consumers remember. See, e.g. Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018). But the “EXTE” portion of the cited mark is also highlighted in italicized font that is larger than the lower-case letters in “SALVATORE.” The line over “EXTE” also draws attention to that portion of the cited mark. So all three terms in the cited mark are highlighted in some manner. In addition, we take judicial notice that Salvatore is a common given name in English of Italian origin.11 Although there is no evidence that “EXTE” is a surname, because “EXTE” also is not a defined term,12 and “SALVATORE” and “EXTE” are visually connected in the cited mark with an over and underline, the cited mark connotes a personal name, “SALVATORE EXTE,” and the corresponding initials, “Se.”13 There is a recognized “practice in the fashion industry of referring to surnames alone.” Nina Ricci S.A.R.L. v. E.T.F. Enters. Inc., 889 F.2d 1070, 12 USPQ2d 1901, 11 PATRICK HANK, ET. AL., OXFORD DICTIONARY OF FIRST Names (2d ed. 2006) at https://www.oxfordreference.com/view/10.1093/acref/9780198610601.001.0001/acref- 9780198610601-e-5984?rskey=SwzNH2&result=6342 (last visited January 30, 2020). The Board may take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format. E.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018). 12 We take judicial notice that “exte” is not defined in the following online dictionaries, last visited January 30, 2020: (1) Merriam-Webster (https://www.merriam- webster.com/dictionary/exte), (2) The American Heritage Dictionary (https://www.ahdictionary.com/word/search.html?q=exte); and (3) Macmillan Dictionary (https://www.macmillandictionary.com/us/spellcheck/american/?q=exte). The Board may take judicial notice that a term is not defined in various dictionaries. Societe Civile Des Domaines, et al. v. S.A. Consortium Vinicole de Bordeaux Et De La Gironde, 6 USPQ2d 1205, 1208 (TTAB 1988) (taking judicial notice of various dictionaries “evidencing the absence of any other meaning for the term [DOURTHE]”). 13 This is true even though the cited registration acknowledges that “Salvatore Exte” does not identify a particular living individual. Serial No. 87779772 - 12 - 1903 (Fed. Cir. 1989) (finding a likelihood of confusion between VITTORIO RICCI and opposer’s NINA RICCI and related marks for clothing); Polo Fashions, Inc. v. La Loren, Inc., 224 USPQ 509, 512 (TTAB 1984) (“Lauren” is used as shorthand for Ralph Lauren); Nina Ricci S.A.R.L. v. Haymaker Sports, Inc., 134 USPQ 26, 28 (TTAB 1962) (“[I]t is common knowledge that various couturiers such as Christian Dior, Huber de Givenchi, and Jacques Fath are frequently referred to by their surnames alone[.]”); Cf. In re SL&E Training Stable, 88 USPQ2d at 1219 (refusing registration of SAM EDELMAN for wallets, handbags and related goods based on a likelihood of confusion with the mark EDELMAN for the same goods noting the propensity of consumers to shorten trademarks). Accordingly, it is foreseeable that consumers may mistakenly believe that Applicant’s mark EXTĒ is a surname abbreviation for the cited mark. Even if consumers do not perceive the cited mark as a personal name and corresponding initials, the Examining Attorney submitted evidence of third parties offering clothing under both a house mark and secondary marks or sub-brands, e.g. ARMANI, GEORGIO ARMANI and EMPORIO ARMANI; KARL LANGERFELD and KARL IKONIK; PERRY ELLIS, AMERICA PERRY ELLIS and PERRY ELLIS PORTFOLIO; and PRADA and PRADA LINEA ROSSA.14 Consumers are likely to mistakenly believe that Applicant’s mark EXTĒ is a shortened form of the cited mark identifying a particular line of Registrant’s clothing, footwear and accessories. In re Apparel Ventures, Inc., 229 USPQ 225, 226 (TTAB 1986) (holding applicant’s mark, SPARKS BY SASSAFRAS (stylized), for clothing, and registrant’s mark, SPARKS 14 November 16, 2018 Final Office Action at TSDR 49-59. Serial No. 87779772 - 13 - (stylized), for footwear, likely to cause confusion, noting that “[t]hose already familiar with registrant’s use of its mark in connection with its goods, upon encountering applicant’s mark on applicant’s goods, could easily assume that ‘sassafras’ is some sort of house mark that may be used with only some of the ‘SPARKS’ goods”); In re U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (holding CAREER IMAGE (stylized) for clothing and retail women’s clothing store services, and CREST CAREER IMAGES (stylized) for uniforms, likely to cause confusion, noting that CAREER IMAGE would be perceived by consumers as a shortened form of CREST CAREER IMAGES); In re Collegian Sportswear, Inc., 224 USPQ 174, 176 (TTAB 1984) (holding COLLEGIAN OF CALIFORNIA and design (with “CALIFORNIA” disclaimed), and COLLEGIENNE, both for items of clothing, likely to cause confusion, noting that the addition of “OF CALIFORNIA” would not obviate confusion because consumers might believe that such wording denotes a new product line from the same source). The macron above the second “E” in Applicant’s mark does not diminish the similarities between the marks. Diacritical marks, such as a macron, are not commonly used in English, lending the impression that Applicant’s mark is from a foreign language. The cited mark has a similar foreign connotation arising from the name Salvatore, which is of Italian origin. In addition, EXTE and EXTĒ are likely to be pronounced similarly, notwithstanding the macron in Applicant’s mark. See, e.g., In re Viterra, 101 USPQ2d at 1912 (“[T]here is no correct pronunciation of a Serial No. 87779772 - 14 - trademark[.]”); Centraz Indus. Inc. v. Spartan Chem. Co. Inc., 77 USPQ2d 1698, 1701 (TTAB 2006). We also must keep in mind that although the cited mark is stylized, Applicant has applied to register a standard character mark without limitation on the manner of display. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 1012, 2015 (TTAB 1998). Accordingly, we must assume that Applicant could display its mark in a stylization similar to that of the cited mark. In re Aquitaine Wine, 126 USPQ2d at 1186 (TTAB 2018) (“[T]he rights associated with a standard character mark reside in the wording per se and not in any particular font style, size, or color.”) (citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011)). The similarities between the marks in their entireties weighs in favor of finding a likelihood of confusion. III. Conclusion We find that consumers encountering Applicant’s mark EXTĒ are likely to perceive it as an abbreviated form of the cited mark, and therefore, are likely to mistakenly believe that Applicant’s clothing, footwear and accessories emanate from Registrant or are otherwise sponsored by or related to Registrant. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed. Copy with citationCopy as parenthetical citation