JODA IP, LLC

Trademark Trial and Appeal BoardJun 28, 2021

88529750 (T.T.A.B. Jun. 28, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: June 28, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re JODA IP LLC _____ Serial No. 88529750 _____ Shauna M. Wertheim and Margaret C. Jaffe of The Marbury Law Group, PLLC, for JODA IP LLC. James Ringle, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Pologeorgis, Dunn, and Johnson, Administrative Trademark Judges. Opinion by Johnson, Administrative Trademark Judge: JODA IP LLC (“Applicant”) seeks registration on the Principal Register of the mark DAPHNE OZ (in standard characters) for “Bedding, namely, bed sheets, pillow cases, pillow shams, mattress covers, bedspreads, coverlets, comforters, quilts, duvet covers, duvets, dust ruffles, and pillow covers; blankets, namely, bed blankets, Serial No. 88529750 - 2 - household blanket throws, children’s blankets, blanket throws, bed throws, and blankets for outdoor use; towels,” in International Class 24.1 The Trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the goods identified in the application, so resembles the mark registered on the Principal Register for “towels of textile; towelling coverlets; bed covers; pillowcases; bed blankets; place mats of textile; bath towels” in International Class 24,2 as to be likely to cause confusion, to cause mistake, or to deceive. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. The appeal is fully briefed. We affirm the refusal to register. 1 Application Serial No. 88529750 filed on July 23, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. Page references to the application record are to the downloadable .pdf version of the United States Patent and Trademark Office’s (“USPTO” or “Office”) Trademark Status & Document Retrieval (TSDR) system. Citations to the briefs, motions, and orders on appeal are to TTABVUE, the Board’s online docketing system. See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the docket entry number, and any number(s) following TTABVUE refer to the page number(s) of the docket entry where the cited materials appear. 2 Registration No. 5790266, issued July 2, 2019. Serial No. 88529750 - 3 - I. 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) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key considerations are the similarities between the marks and the similarities between 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.”). A. The Similarity of the Goods, Customers, and Channels of Trade. We begin with the second and third DuPont likelihood of confusion factors, the similarity of the goods and channels of trade. Applicant’s goods are “Bedding, namely, bed sheets, pillow cases, pillow shams, mattress covers, bedspreads, coverlets, comforters, quilts, duvet covers, duvets, dust ruffles, and pillow covers; blankets, namely, bed blankets, household blanket throws, children’s blankets, blanket throws, bed throws, and blankets for outdoor use; towels,” and Registrant’s goods include “pillowcases,” “bed blankets,” “bath towels,” and “bed covers.” Applicant’s “pillow cases” and “bed blankets” are identical to Registrant’s “pillowcases” and “bed blankets.” Applicant’s “towels” encompass Registrant’s “towels of textile” and “bath towels,” and Applicant’s “bedding” encompasses Serial No. 88529750 - 4 - Registrant’s “bed covers.” These goods at issue are therefore legally identical in part. Brown Shoe Co. v. Robbins, 90 USPQ2d 1752, 1754 (TTAB 2009). A single good from among a list can sustain a finding of likelihood of confusion. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Furthermore, there are no limitations as to channels of trade or classes of purchasers in either the application or cited registration. As a result, given the identical nature (in full or in part) of the goods, we must presume that the goods will be sold in the same channels of trade and bought by the same classes of purchasers. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1518-19 (TTAB 2016). Therefore, the second and third DuPont factors strongly weigh in favor of a finding that confusion is likely. B. The Strength of the Cited Mark. Because the strength of the cited mark may affect the scope of protection to which it is entitled, we examine Applicant’s claim that Registrant’s mark is a weak mark entitled to only an extremely narrow scope of protection. “In determining strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition.” Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017) (citing Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014)); see also 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 Serial No. 88529750 - 5 - its marketplace strength (secondary meaning).”). “[T]he strength of a mark is not a binary factor” and “varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal citations omitted). “The weaker [the registrant’s] mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Id. at 1676 (internal citations omitted). See also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (“Evidence of third-party use of similar marks on similar goods is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.”). The fifth DuPont factor, the fame of the prior mark,3 and the sixth DuPont factor, the number and nature of similar marks in use for similar goods or services, may be considered in tandem to determine the strength of the cited mark and the scope of protection to which it is entitled. Bell’s Brewery, 125 USPQ2d at 1345; DuPont, 177 USPQ at 567; Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (“Evidence of third-party use of similar marks on similar goods is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.”); Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1059 (TTAB 2017) (“As to commercial weakness, ‘the probative 3 Because there is no evidence of record regarding the fame of the cited mark, the fifth DuPont factor is neutral. Serial No. 88529750 - 6 - value of third-party trademarks depends entirely upon their usage’”) (quoting Palm Bay Imps., 73 USPQ2d at 1693). In addition, the Federal Circuit has held that if there is evidence that a mark, or an element of a mark, is commonly adopted by many different registrants, such adoption may indicate that the common element has some non-source identifying significance that undermines its conceptual strength as an indicator of a single source. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“[E]vidence of third-party registrations is relevant to ‘show the sense in which a mark is used in ordinary parlance,’ … that is, some segment that is common to both parties’ marks may have ‘a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak’”) (quoting Juice Generation, 115 USPQ2d at 1674). Applicant argues that the term “Daphne” is weak when used in connection with the goods recited in the cited registration.4 As a result, Applicant maintains that the addition of the term “Oz” in its mark is sufficient to avoid a likelihood of confusion.5 In support of its argument, Applicant submitted the following third-party use evidence:6 4 Applicant’s Appeal Brief, 4 TTABVUE 10. 5 Id. 6 Applicant did not submit any third-party registration evidence showing that the term “Daphne” has been commonly incorporated in registered marks for goods identical or similar to the goods identified in the cited registration. Accordingly, we find that the cited mark is inherently distinctive, and therefore, is entitled to the normal scope of protection accorded an inherently distinctive mark. This especially holds true since the cited mark is registered Serial No. 88529750 - 7 -  Daphne Bedding Collection, exclusively offered at www.frontgate.com;  Daphne Scroll Aqua Mist Medallion Comforter Bedding by Waterford Linens, offered at www.touchofclass.com;7  Daphne Botanical Ferns Percale Duvet Cover, Daphne Botanical Ferns Percale Flat Sheet, Daphne Botanical Ferns Percale Fitted Sheet, Daphne Botanical Ferns Percale Pillowcases, and Daphne Botanical Ferns Percale Shams, offered at www.cuddledown.com;  Croscill Daphne 4-piece Bedding Collection, offered at www.macys.com;  Daphne Bedding by Matouk, offered at shopbedside.com;  Liz Claiborne Daphne Floral Embellished Bedspread, offered at www.jcpennney.com;  Daphne Organic Duvet Cover & Shams, found (but no longer offered) at www.potterybarn.com;  Latitude Run Bascombe Daphne Reversible Quilt Set, offered at www.wayfair.com;  HG Station 8-Piece Daphne Comforter Set, offered at www.sears.com;  Urban Playground Daphne Comforter Set, offered at www.amazon.com;8  Daphne Metallic Printed Reversible Comforter Set, offered at www.target.com;  Home Essence Teen Daphne Metallic Printed Reversible Comforter Set, offered at www.walmart.com; on the Principal Register without a showing of acquired distinctiveness under Section 2(f) of the Trademark Act. In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007), cited in Fat Boys, 118 USPQ2d at 1517. In addition, one of the third-party uses submitted by Applicant is use by Registrant of its cited mark. See July 8, 2020 Request for Reconsideration After Final Action, pp. 81-83. We have given no consideration to this evidence in our strength of the mark analysis. 7 The Daphne Scroll Aqua Mist Medallion Comforter Bedding by Waterford Linens is also offered at www.bloomingdales.com. 8 The Daphne Comforter Set by Urban Playground is also offered at www.kohls.com. Serial No. 88529750 - 8 -  Nanshing 6 Piece Daphne Comforter Set, offered at www.steinmart.com;  Hallmart Collectibles Daphne 5-Piece Full Comforter Set in Pink and White, offered at www.nfm.com;  Daphne Quilt and Daphne bedding accessories, offered at www.countryporch.com; and  Grand Avenue Daphne 7 Piece Comforter Set, offered at www.overstock.com. As noted above, evidence of extensive use of a term by others for similar goods can be powerful evidence of the term’s weakness. Jack Wolfskin, 116 USPQ2d at 1136. While Applicant has not presented specific evidence concerning the extent, exposure, or impact of these uses, “[i]n determining the degree of weakness, if any, of the shared term [Daphne], we must ‘adequately account for the apparent force of [third-party use] evidence,’ regardless of whether ‘specifics’ pertaining to the extent and impact of such use[s] have been proven.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019) (mem.) (quoting Jack Wolfskin, 116 USPQ2d at 1136). And, “Internet printouts, such as those offered by Applicant, ‘on their face, show that the public may have been exposed to those internet websites and therefore may be aware of the advertisements contained therein.’” Id. (quoting Rocket Trademarks Pty Ltd v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011)). Here, the sixteen third-party uses (found at eighteen web sites) offered by Applicant are probative of some commercial weakness of the term “Daphne” for bedding and related goods, but these third-party uses are not so “ubiquitous” or “considerable” that we can conclude that customers have been conditioned to Serial No. 88529750 - 9 - distinguish between different Daphne-formative marks for bedding and related goods. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (evidence of third-party use in case fell “short of the ‘ubiquitous’ or ‘considerable’ use of the mark components present in [applicant’s] cited cases”); Jack Wolfskin, 116 USPQ2d at 1136 (discussing “voluminous evidence” of registration and use of paw print design elements); Juice Generation, 115 USPQ2d at 1674 & n.1 (referring to 26 third-party marks as evidence of “a considerable number”). Furthermore, the sixteen third-party uses submitted by Applicant show use of “Daphne” not alone, but in conjunction with other distinctive matter such as house marks. While Applicant’s third-party use evidence does demonstrate some commercial weakness of the cited mark, such evidence does not support the argument that use of “Daphne” is widespread for bedding and related goods in class 24, or that the cited mark is weak overall and entitled to a narrow scope of protection. Nonetheless, even weak marks are entitled to protection against confusion. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974). In sum, we find the cited mark, , is an arbitrary mark when used in conjunction with bedding and related goods and warrants the protection of a distinctive registered mark. Serial No. 88529750 - 10 - C. The Similarity or Dissimilarity of the Marks in Their Entireties as to Appearance, Sound, Connotation, and Commercial Impression. Next we address the first DuPont factor, which focuses on “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” DuPont, 177 USPQ at 567. “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. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). We determine the similarity of the marks based on the marks in their entireties, so our analysis is not predicated on dissecting the marks into their various components. In re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015). Yet “there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The first term of Applicant’s mark is essentially identical to the cited mark, so we assess the impact of the additional two letter term “Oz” on overall commercial impression. Applicant contends that “third party registrations demonstrate that the addition of various terms to the common term between two marks have been Serial No. 88529750 - 11 - sufficient for the Office to view the marks as sufficiently different from one another such as not to cause confusion,” citing In re Hartz Hotel Servs. Inc., 102 USPQ2d 1150, 1154 (TTAB 2012).9 In that case, the third-party registrations featured identical hotel services, thereby exposing the weakness of the common term, “Grand Hotel.” Id. Here, Applicant introduced evidence of two10 third-party registrations: one for the mark DIANE (Reg. No. 4581772) and one for the mark DIANE VON FURSTENBERG (Reg. No. 4042362). Both marks are registered for goods including “towels” or “bath linens,” which are some of the same goods at issue here. We are not persuaded, however, that this one instance demonstrates that first names can be differentiated by the addition of a surname.11 Applicant’s third-party registration set is “not evidence that the registered marks are actually in use or that the public is familiar with them.” In re Midwest Gaming & Entm’t, 106 USPQ2d 1163, 1167 n.5 (TTAB 2013) (citing In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)); see TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1207.01(d)(iii) (October 2018). Whatever probative value there is to Applicant’s set of third-party registrations is weighed in conjunction with other evidence. See, e.g., In re Thor Tech, Inc., 113 USPQ2d 1546, 1548 (TTAB 2015) (to rebut the Office’s 9 4 TTABVUE 15. 10 Applicant also included one registration for DIANA ROSS, Reg. No. 6322383 (July 8, 2020 Request For Reconsideration After Final Action, pp. 27-28). We have not included this registration because it does not include goods that are common to the goods at issue in this appeal. 11 Applicant introduced three other sets of third-party registrations, but because none involve the goods at issue here, we do not find the evidence relevant. Serial No. 88529750 - 12 - evidence, applicant proffered fifty pairs of third-party registrations of identical or similar marks to show that the goods were distinctive in the marketplace and that confusion between identical marks was unlikely; furthermore, the Board found that purchasers would exercise a high degree of care in making purchasing decisions for the relatively expensive goods). In any event, prior decisions and actions of other examining attorneys in registering other marks have little evidentiary value and are not binding upon the USPTO or the Trademark Trial and Appeal Board. Midwest Gaming & Entm’t, 106 USPQ2d at 1165 n.3 (citing In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)); TMEP § 1207.01(d)(vi). Each case is decided on its own facts, and each mark stands on its own merits. See AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Binion, 93 USPQ2d 1531, 1536 (TTAB 2009). Turning to a comparison of the cited mark, , with Applicant’s mark DAPHNE OZ, we note that likelihood of confusion is often found where the entirety of one mark is incorporated within another. See Coca-Cola Bottling Co. of Memphis Tenn., Inc. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ2d 105, 106 (CCPA 1975) (BENGAL and BENGAL LANCER for closely related goods found confusingly similar); In re Integrated Embedded, 120 USPQ 1504, 1513 (TTAB 2016) (citing In re Denisi, 225 USPQ 624, 626 (TTAB 1985) (PERRY’S PIZZA for restaurant services specializing in pizza and PERRY’S for restaurant and bar services). Comparing the marks, we find that Applicant’s mark, DAPHNE OZ, incorporates the Serial No. 88529750 - 13 - literal element of the cited mark, , in its entirety. In addition, the first word of Applicant’s mark, “Daphne,” is a notable component of DAPHNE OZ, given its location as the first part of the mark. It is the first word to appear on any label or to be articulated when pronouncing the mark. See Presto Products Inc. v. Nice- Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”); see also Palm Bay Imps., 73 USPQ2d at 1692 (“veuve” is the most prominent part of the mark VEUVE CLICQUOT, because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers must first notice the identical lead word). Also, although the cited mark is stylized, Applicant has applied to register a standard character mark without limitation on the manner of display. Accordingly, we must assume that Applicant could display its mark in a stylization identical or similar to that of the cited mark. In re Aquitaine Wine, 126 USPQ2d 1181, 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)); see also Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983). Applicant asserts that the renown of Daphne Oz Jovanovich, the daughter of celebrity medical doctor Mehmet Oz — and who is a celebrity and author in her own Serial No. 88529750 - 14 - right —12 together with the surname “Oz,” render the entire DAPHNE OZ mark dissimilar in connotation and overall commercial impression, because “widespread” consumer exposure to the name “Daphne Oz” will cause consumers to immediately associate the DAPHNE OZ mark with Ms. Oz Jovanovich. The record establishes that Ms. Oz Jovanovich, professionally known as “Daphne Oz,” has been the subject of significant media coverage involving a variety of commercial and entertainment endeavors.13 Nevertheless, in this appeal we must consider actual and prospective consumers of bedding, including those who are not familiar with Ms. Oz Jovanovich, since the proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). As to the addition of the surname “Oz” to the given name, “Daphne,” likelihood of confusion is not necessarily avoided between otherwise confusingly similar marks merely by adding (or deleting) other matter. The general commercial impression of both marks, and DAPHNE OZ, is that of a relatively rare name. To the extent that the recognition of the individual DAPHNE OZ carries over to bedding, it 12 May 5, 2020 Response to Office Action, pp. 22-44. 13 Applicant submitted various Internet articles and Internet web pages supporting the renown of Ms. Oz Jovanovich. While we do not consider these articles and materials for the truth of the matter in them, these articles and materials can be considered to show that Ms. Oz Jovanovich has been the subject of significant media coverage involving a variety of commercial and entertainment endeavors. See Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1708 (TTAB 2010) (“probative value [of Internet materials] is strictly confined to showing that the public may have been exposed to those Internet websites and therefore may be aware of the information or advertisements contained therein”). Serial No. 88529750 - 15 - is highly likely that consumers will believe that both marks identify the same source, and that Applicant’s proposed mark is merely the complete, full version of the registered mark DAPHNE. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993) (“The term ‘reverse confusion’ has been used to describe the situation where a significantly larger or prominent newcomer ‘saturates the market’ with a trademark that is confusingly similar to that of a smaller, senior registrant for related goods or services.” (citations omitted)); see also In re National Novice Hockey League, Inc., 222 USPQ 638, 641 n.7 (TTAB 1984) (“It may be appropriate at this point to note, as has been observed by one commentator, that the statutory concept of ‘likelihood of confusion” denotes any type of confusion, including not only source confusion but also “confusion of affiliation; confusion of connection; or confusion of sponsorship.”). Applicant also asserts that “when the distinction between two otherwise similar or identical marks is a surname, that surname renders the entire mark dissimilar in terms of connotation and overall commercial impression.”14 We do not agree that is 14 4 TTABVUE 13; Applicant’s Reply Brief, 7 TTABVUE 5. Applicant cites In re Javier’s, Inc., Ser. No. 78734301, 2008 WL 1741899 at *4 (TTAB Apr. 2, 2008) (not citable as precedent), a case which did not, as here, involve identical goods, and involved a more common first name. An opinion designated as not precedential is not binding upon the Board, but may be cited for whatever persuasive value it might have. TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 101.03, 1203.02(f) (2021). Generally, the practice of citing non-precedential opinions is not encouraged. In re Morrison & Foerster LLP, 110 USPQ2d 1423, 1427 n.6 (TTAB 2014); In re The Procter & Gamble Co., 105 USPQ2d 1119, 1120-21 (TTAB 2012). Moreover, the precedential cases cited in Javier’s which focus on the similarity of the marks can be easily distinguished from this case. Here, the cited mark is a given name and the construction of Applicant’s mark is the same given name plus a different surname. The cases cited in Javier’s focus on the likelihood of confusion between marks that are constructed of an identical given name plus a similar surname, see Helene Curtis Indus., Inc. v. Serial No. 88529750 - 16 - always the case. In assessing the mark DAPHNE OZ, we do not find that the unusual nature of the surname “Oz” renders Applicant’s mark necessarily dominated by that term so that confusion with the cited mark is avoided. Further, if a sole, or dominant, portion of one mark is shared with another mark, then the marks may be confusingly similar notwithstanding some differences. See, e.g., In re Detroit Athletic Co., 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (affirming Board’s finding that the marks DETROIT ATHLETIC CO. and DETROIT ATHLETIC CLUB are nearly identical in terms of sound, appearance, and commercial impression, and noting that, while “the words ‘Co.’ and ‘Club’ technically differentiate the marks, those words do little to alleviate the confusion that is likely to ensue”). So while there are differences between the marks in appearance and sound, we find that when considered in their entireties, Applicant’s mark, DAPHNE OZ, and the cited mark, , are more similar than dissimilar in appearance, sound, and connotation, and convey a similar overall commercial impression due to the shared term, “Daphne.” Those similarities outweigh the differences identified by Applicant. Accordingly, this factor weighs in favor of a finding of likelihood of confusion. Carew Prods., Inc., 124 USPQ 429 (TTAB 1960) (HELENE CURTIS registered for “a line of cosmetics including night creams” vs. HELENE CAREW, an application for a “night nourishment facial cream”); Mary Kay Cosmetics, Inc. v. Societe Anonyme Laboratoire Rene Guinot, 217 USPQ 975 (TTAB 1981) (MARY KAY registered for cosmetics, toiletries, and related personal care and grooming products vs. MARY COHR, an application for a variety of goods including “mascara, eyeliner, lip gloss, fluid and solid makeup, face powder, eye shadow,” and “toilet soap”), and marks that share an identical surname. See Miller Brewing Co. v. Premier Beverages, Inc., 210 USPQ 43, 48 (TTAB 1981) (MILLER’S registered for various beverages, including “beer, ale, malt liquor, and 3.2 beer” vs. OL’ BOB MILLER, an application for “soft drinks”). Serial No. 88529750 - 17 - II. Conclusion When we consider all of the arguments and evidence relating to the relevant likelihood of confusion factors, we find that confusion is likely between Applicant’s mark, DAPHNE OZ, and the cited mark, , given the similarity between the marks, the identical nature of the goods, and the overlap in classes of purchasers and trade channels. We acknowledge that Applicant has provided some evidence probative of commercial weakness in the cited mark, but not enough to overcome a likelihood of confusion. Decision: The refusal to register Applicant’s mark, DAPHNE OZ, under Section 2(d) of the Trademark Act is affirmed.