International Luxury Inc.

Trademark Trial and Appeal Board

Jan 30, 2020

87779772 (T.T.A.B. Jan. 30, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 30, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re International Luxury Inc.
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Serial No. 87779772
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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).
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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.
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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
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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.”
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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
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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.
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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).
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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.
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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
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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
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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.
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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
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(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
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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.