Klöckner Pentaplast Europe GmbH & Co. KG

Trademark Trial and Appeal Board

Jun 24, 2021

88628761 (T.T.A.B. Jun. 24, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 24, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Klöckner Pentaplast Europe GmbH & Co. KG
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Serial No. 88628761
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Holly Pekowsky of Amster, Rothstein & Ebenstein LLP,
for Klöckner Pentaplast Europe GmbH & Co. KG.
Marcie R. Frum Milone, Trademark Examining Attorney, Law Office 116,
Matthew J. Cuccias, Managing Attorney.
_____

Before Rogers, Chief Administrative Trademark Judge, and
Cataldo and Hudis, Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Klöckner Pentaplast Europe GmbH & Co. KG (“Applicant”) seeks registration on
the Principal Register of the standard character mark PENTALABEL EKLIPSE for:
Plastic packaging wrap for commercial or industrial use, none of the
foregoing for use in the manufacture of building materials, in
International Class 16, and
Flexible and rigid plastic film for industrial and commercial packing
use, none of the foregoing for use in the manufacture of building
materials; extruded plastic in the form of sheets and films for use in
Serial No. 88628761
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manufacturing, none of the foregoing for use in the manufacture of
building materials, in International Class 17.1
The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 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 E EKLIPSE and Design
in the following format:

for:
Polymer composite material, namely, polymer/glass extruded
composites in the form of extruded pellets, rods, strings and filaments
for use in the manufacture of building materials in the nature of siding,
decking, window and door frames, pipes, and structural reinforcements,
in International Class 17.2
on the Principal Register as to be likely to cause confusion, to cause mistake, or to
deceive. After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Subsequent to Applicant filing its appeal, the Examining
Attorney withdrew the USPTO’s Trademark Act Section 2(d) refusal as to Applicant’s
goods in International Class 16. The statutory refusal as to Applicant’s goods in
International Class 17 has been maintained.3 We reverse the refusal to register
regarding Applicant’s goods in International Class 17.

1 Application Serial No. 88628761 was filed on September 24, 2019 under Trademark Act
Section 1(b), 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention
to use the mark in commerce.
2 Registration No. 5402507 was issued on February 13, 2018.
3 Examining Attorney’s Brief, 6 TTABVUE 4-5. Page references herein to the application
record refer to the online database of the USPTO’s Trademark Status & Document Retrieval
(“TSDR”) system. All citations to documents contained in the TSDR database are to the
downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In
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I. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to the various DuPont factors depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,

re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the
briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE
designation is the docket entry number; and after this designation are the page references, if
applicable.
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98 USPQ2d 1253, 1260 (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. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“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.’”)) (citations omitted).
II. Likelihood of Confusion - Analysis
We now consider the arguments of Applicant and the Examining Attorney, the
applicable law and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney discussed are the similarity or dissimilarity
of Applicant’s and Registrant’s marks, the relatedness of the goods associated with
the respective marks, the channels of trade in which the goods bearing the marks
travel, and the sophistication of relevant purchasers. We discuss these factors below.
A. The Similarity or Dissimilarity of the Marks
We determine the similarity or dissimilarity of Applicant’s and Registrant’s marks
in their entireties, the first DuPont factor, taking into account their appearance,
sound, connotation and commercial impression. DuPont, 177 USPQ at 567; In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
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2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777
Fed. Appx. 516 (Fed. Cir. 2019).
Under actual marketing conditions, consumers do not necessarily have the luxury
of making side-by-side comparisons between marks, and must instead rely upon their
recollections, which may be imperfect. Dassler KG v. Roller Derby Skate Corp., 206
USPQ 255, 259 (TTAB 1980). “The proper test[, therefore,] 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.” Cai v. Diamond Hong,
127 USPQ2d at 1801 (internal quotation omitted).
The parties’ marks “must be considered … in light of the fallibility of memory ….”
In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014)
(quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683,
196 USPQ 1 (CCPA 1977)). Therefore, the focus is on the recollection of the average
purchaser, here, a buyer of extruded plastics and like materials, who normally retains
a general rather than a specific impression of trademarks. In re Assoc. of the U.S.
Army, 85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
Serial No. 88628761
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749, 751 (Fed. Cir. 1985); see also 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.”). Further, “[n]o element of a mark is ignored
simply because it is less dominant, or would not have trademark significance if used
alone.” In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ
35 (CCPA 1974)).
Nonetheless, 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 a consideration of the marks in their entireties. Stone Lion Capital
Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014). We find the term PENTALABEL to be the dominant portion of Applicant’s
PENTALABEL EKLIPSE mark, while EKLIPSE is the dominant portion of
Registrant’s E EKLIPSE and Design mark.
We find the first term PENTALABEL to be the dominant portion of Applicant’s
mark because it is the “term most likely to be remembered by consumers” and “used
in calling for the … [goods]” or in otherwise referring to Applicant as the source
thereof. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009). While we do not disregard
it, the significance of the second term EKLIPSE in the comparison of marks is
diminished because consumers are not inclined to rely on this relatively weaker term
to indicate the source of Applicant’s goods. See In re Dixie Rests., Inc., 105 F.3d 1405,
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41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997). A term in a mark may be conceptually
weak because it conveys a suggestive meaning as to an aspect of the goods or services,
and here we find that EKLIPSE suggests the light blocking properties of Applicant’s
goods.
As for Registrant’s mark, we note that Registrant’s mark includes an hexagonal
design element surrounding a stylized letter “E,” preceding the term EKLIPSE. We
do not give these elements of Registrant’s mark as much consideration in
differentiating it from Applicant’s mark, because “the verbal portion of the mark is
the one most likely to indicate the origin of the goods to which it is affixed.” Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co., KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015) (citing CBS Inc. v.
Morrow, 708 F.2d 1579, 21 USPQ 198, 200 (Fed. Cir. 1983)). Greater weight is often
given to the wording because it is the wording that purchasers would use to refer to
or request the goods. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911
(Fed. Cir. 2012). The stylized letter E is likely to be perceived as emphasizing the
initial letter of the literal portion of Registrant’s mark and is unlikely to be
articulated by purchasers calling for Registrant’s goods.
Even without discounting the design and (partial) stylization elements of
Registrant’s mark, we would find Applicant’s PENTALABEL EKLIPSE mark and
Registrant’s EKLIPSE mark to be visually and aurally distinguishable because of the
placement of the multi-syllabic term “PENTALABEL” at the beginning of Applicant’s
mark. See Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198
Serial No. 88628761
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USPQ 151, 153 (CCPA 1978) (no visual similarity between ZINGERS and the applied
for mark, RED ZINGER, since the word RED was an identifying factor sufficient to
distinguish it from the ZINGERS mark); Conde Nast Pubs. Inc. v. M.S. Quality, Inc.,
507 F.2d 1404, 1407, 184 USPQ 422, 425 (CCPA 1975) (no visual similarity between
COUNTRY VOGUES and VOGUE since “the only similarity between them is the
VOGUE part of the mark ... and the dissimilarities between the marks, compared in
their entireties, outweigh this similarity.”); Mr. Hero Sandwich Sys., Inc. v. Roman
Meal Co., 781 F.2d 884, 228 USPQ 364, 366 (Fed. Cir. 1986) (Reversing cancellation
of respondent’s registration: “’ROMANBURGER’ … [for sandwiches] is pronounced
… with [a] sound and cadence distinctly different from the [ROMAN and] ROMAN
MEAL marks [for various food products].”).
Moreover, the first term in Applicant’s mark, PENTALABEL, is a made-up word4
having no inherent relationship to Applicant’s Class 17 goods. The term EKLIPSE in
Applicant’s mark is a reference to the fact that Applicant’s packaging film sold in
connection with the PENTALABEL EKLIPSE mark has light blocking properties,
which provides benefits for food such as extended shelf-life, off-taste reduction and
vitamin protection.5 Thus, EKLIPSE is considered at best suggestive in relationship
to Applicant’s goods. Further, the term EKLIPSE in Registrant’s E EKLIPSE and
Design mark appears to be used as a claim of superiority over (that is, “to eclipse”)
similar products sold by Registrant’s competition: “How Eklipse® Came to be: … we

4 Office Action Response of June 23, 2020 at TSDR 12.
5 Id. at TSDR 12, 16-17 (trade article describing Applicant’s branded product) and 18
(definition of “Eclipse” from DICTIONARY.COM).
Serial No. 88628761
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saw an opportunity to load fibers into polymers without the drawbacks seen by
competitors.”6 While this is not direct evidence of how the relevant purchasing public
would understand the marks, we find it is at the very least evidence of how Applicant
and Registrant educate potential target customers of the intended meanings of the
respective marks.
Thus, we find the shared term “EKLIPSE” in Applicant’s and Registrant’s marks
to be relatively weak, considering how it is used by Applicant and Registrant vis-á-vis
the term PENTALABEL in Applicant’s mark. “Where a … [relatively weak] term
forms part of two or more marks for [even arguably] related products …, the
purchasing public has become conditioned to this frequent marketing situation and
will not be diverted from selecting what is wanted unless the overall combinations
have other commonality.” In re Nat’l Data, 224 USPQ at 752.
In their entireties, because of the way Applicant and Registrant educate potential
buyers of the intended meanings of the respective marks, we find Applicant’s
PENTALABEL EKLIPSE mark and Registrant’s mark are
distinguishable in meaning and overall commercial impression. See, Champagne
Louis Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460
(Fed. Cir. 1998) (CRISTAL for champagne and CRYSTAL CREEK for wine “evoked

6 Office Action of September 3, 2020 at TSDR 14-18 (Registrant’s web site); Office Action
Response of June 23, 2020 at TSDR (“Eclipse” as a synonym of “Surpass” (greater, better,
stronger than …) from THESAURUS.PLUS). Laudatory terms or phrases used in the form of a
claim of superiority are considered weak as trademarks to indicate the source of products.
See In re Bos. Beer Co., 198 F.3d 1370, 53 USPQ2d 1056, 1058-59 (Fed. Cir. 1999) (BEST
BEER IN AMERICA found to be a “common, laudatory advertising phrase … merely
descriptive of … [Applicant’s] goods.”).
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very different images in the minds of relevant consumers: while the former suggested
the clarity of the wine within the bottle or the glass of which the bottle itself was
made, the latter suggested ‘a very clear (and hence probably remote from civilization)
creek or stream.’”); In re British Bulldog, Ltd., 224 USPQ 854, 856 (TTAB 1984) (no
likelihood of confusion between the marks PLAYERS for shoes and PLAYERS for
men’s underwear because the former “implies a fit, style, color and durability adapted
to outdoor activities” while the latter “implies something else, primarily indoors in
nature.”).
Our findings that the marks are distinguishable in appearance, sound, meaning
and overall commercial impression supports the conclusion that confusion is not
likely.
B. The Similarity or Dissimilarity of the Goods
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods … as described in an application or registration….” DuPont, 177 USPQ at
567. This factor considers whether ‘the consuming public may perceive [the respective
goods … of the parties] as related enough to cause confusion about the source or origin
of the goods ….’” In re St. Helena Hosp., 113 USPQ2d at 1086 (quoting Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir.
2002)). The issue, however, is not whether purchasers would confuse the goods, but
rather whether there is a likelihood of confusion as to the source of the goods. L’Oreal
S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ
830, 831 (TTAB 1984).
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Applicant’s Class 17 goods are “flexible and rigid plastic film for industrial and
commercial packing use, none of the foregoing for use in the manufacture of building
materials; extruded plastic in the form of sheets and films for use in manufacturing,
none of the foregoing for use in the manufacture of building materials.” Registrant’s
goods (also in Class 17) are “polymer composite material, namely, polymer/glass
extruded composites in the form of extruded pellets, rods, strings and filaments for
use in the manufacture of building materials in the nature of siding, decking, window
and door frames, pipes, and structural reinforcements.”
The Examining Attorney argues that “the Class 17 goods of [A]pplicant and
[R]egistrant are sufficiently related to support a finding of likely consumer confusion
because they serve similar purposes …” That is “the goods of [A]pplicant and
[R]egistrant serve similar purposes in that they are plastics and plastic composites
that may be used in further manufacture.”7
Applicant argues that “the packaging and packing materials and extruded plastic
in the form of sheets and films for use in manufacturing covered by Applicant’s Mark
are clearly unrelated to the building materials covered by … [Registrant’s] Mark.
[T]hese goods do not serve common functions, are not competitive, and do not share
any physical attributes at all.”8
In making our determination regarding the relatedness of the goods, we must look
to the goods as identified in the application at issue vis-à-vis those recited in the cited

7 Examining Attorney’s Brief, 6 TTABVUE 9-10.
8 Applicant’s Brief, 4 TTABVUE 9.
Serial No. 88628761
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registration. We cannot consider extrinsic evidence regarding the similarities
between Applicant’s goods and Registrant’s goods. See Octocom Sys., Inc. v. Hous.
Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Thus,
the Examining Attorney’s evidence regarding how Applicant’s and Registrants goods
are related based upon how they are promoted for use on the respective company’s
websites9 cannot serve as extrinsic evidence to limit the scope of the goods at issue.
However, we will consider this evidence insofar as it explains the nature of the goods
for purposes of establishing whether they are, or are not, related.
Consequently, when we look at the respective identifications of goods, Registrant’s
products are specifically intended for use in the manufacture of structural building
materials (e.g., for use in building homes, offices or industrial buildings). Applicant’s
identification of goods is written to explicitly disclaim such uses for its products.10 We
thus disagree with the Examining Attorney’s argument that “the goods of [A]pplicant
and [R]egistrant serve similar purposes in that they are plastics and plastic
composites that may be used in further manufacture.” While Applicant’s plastics and
Registrant’s polymer composites “might” be similar in nature (and there is no proof

9 Office Action of September 3, 2020 at 9-18; Examining Attorney’s Brief, 6 TTABVUE 10-12.
10 While exclusionary statements of this type carry some weight, we often discount them. On
the other hand, Applicant’s exclusionary language may not have been necessary to
distinguish the goods in the first instance. Applicant’s Class 17 identification of goods, prior
to submission and entry of the exclusionary statement, already included limiting language,
i.e., its goods are intended for use for packing. This is a different use than for manufacturing
of structural building materials. Even if the Applicant’s goods can be used to manufacture
other items, they would be packing items, not building materials.
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in the record that this is true), we find they are in any case intended for different
purposes and uses.
The six third-party use-based registrations the Examining Attorney made of
record listing both Applicant’s and Registrant’s types of goods registered under the
same mark does not change our finding that the respective products are unrelated.
“[U]se-based, third-party registrations, although not evidence that the marks shown
therein are in use or that the public is familiar with them, nonetheless have probative
value to the extent that they serve to suggest that the goods listed therein are of a
kind which may emanate from a single source under a single mark.” Joel Gott Wines
LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1432 (TTAB 2013). However, these
registrations must be sufficient in both quality and quantity to provide “a reasonable
predicate” supporting the Examining Attorney’s position on relatedness. See, e.g., In
re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1632 (Fed. Cir. 2003). Here, unlike
cases in which extensive third-party registration evidence was found probative, In re
Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-03 (TTAB 2009) (21 third-party
registrations probative of relatedness of subject goods); In re Anderson, 101 USPQ2d
1912, 1919 (TTAB 2012) (numerous third-party registrations probative of
relatedness), we find that six third-party registrations, two of which were issued to
apparently related owners,11 simply is well short of the volume of third-party

11 Reg. Nos. 5561796 (for the mark TAISHAN), issued to Shenzhen Wuboyuan electronic
commerce Co., and 5561796 (for the mark HUASHAN) issued to Shenzhen Mengmutang
culture development Co., both listed at the same city and street address in China. Office
Action of September 3, 2020 at TSDR 31-44.
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registrations needed to demonstrate product relatedness – particularly when not
accompanied by equivalent third-party use evidence.
Our finding as to the lack of relatedness between Applicant’s and Registrant’s
goods supports the conclusion that confusion is not likely.
C. The Similarity or Dissimilarity of Trade Channels
The third DuPont factor considers “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Similarity of trade
channels refers to “the conditions and activities surrounding the marketing of the …
[goods] such that they would or could be encountered by the same persons under
circumstances that could, because of the similarity of the marks, give rise to the
mistaken belief that they originated from the same producer.” In re Binion, 93
USPQ2d at 1534-35.
The Examining Attorney asks us to presume an overlap of trade channels because
(1) Applicant’s and Registrant’s goods are “sufficiently related” and “serve similar
purposes,”12 (2) Applicant’s and Registrant’s websites promote use of their goods for
similar purposes,13 and (3) evidence consisting of six third-party registrations
demonstrates that Applicant’s and Registrant’s types of goods are registered under
the same mark;14 all positions we discounted above in discussing the purported
relatedness of Applicant’s and Registrant’s goods.

12 Examining Attorney’s Brief, 6 TTABVUE 9.
13 Id. at 10-12.
14 Id. at 12-16.
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Normally, “absent restrictions in the application and registration, goods … are
presumed to travel in the same channels of trade to the same class of purchasers.”
Hewlett-Packard, 62 U.S.P.Q.2d at 1005. Here, the situation is the exact opposite of
the general rule espoused by Hewlett-Packard – there are restrictions in both the
involved application and cited registration segregating the channels of trade through
which, and classes of purchasers to whom, Applicant’s and Registrant’s goods are
sold. “Because of the differences in the channels of trade and customers for
[A]pplicant’s and [R]egistrant’s goods, [we find] there is virtually no opportunity for
confusion to arise.” In re HerbalScience Group, LLC, 96 USPQ2d 1321, 1324 (TTAB
2010).
D. Purchaser Sophistication
The fourth DuPont factor contemplates “[t]he conditions under which and buyers
to whom sales are made, i.e. ‘impulse’ v. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. Applicant argues that “[t]here is no likelihood of confusion between
Applicant’s [m]ark and … [Registrant’s] [m]ark for the additional reason that the
[goods sold under the respective marks] are both products sold business-to-business
to sophisticated consumers.”15 The Examining Attorney counters that “contrary to
[A]pplicant’s argument, there is no evidence that the consumers of the marks are
sophisticated.”16 We agree that there is no evidence of record discussing the
sophistication of the target buyers for Applicant’s and Registrant’s goods. Such lack

15 Applicant’s Brief, 4 TTABVUE 11.
16 Examining Attorney’s Brief, 6 TTABVUE 16.
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of evidence militates against giving weight to purchaser sophistication factor. See In
re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991) (“no evidence to suggest that
purchasers of … [involved] goods are any more sophisticated than purchasers of any
other retail goods.”).
However, “common sense facts that are not subject to reasonable dispute … [can
be] sufficient” to make reasonable deductions regarding the conditions of sale and
classes of purchasers. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464,
1472 (TTAB 2016). Using a degree of common sense, we find that neither Applicant’s
nor Registrant’s Class 17 goods are the type that would be purchased by an ordinary
member of the general public on impulse at an average retail store. On the other
hand, we are sensitive “that even sophisticated consumers are not immune from
source confusion ….” Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913,
1922 (TTAB 2015).
On balance, we find the purchaser sophistication factor weighs slightly in favor of
a finding that confusion is unlikely.
III. Likelihood of Conclusion - Conclusion
Balancing the DuPont likelihood of confusion factors based on controlling legal
principles and the applicable facts of record, we find that the marks, goods and
channels of trade are distinguishable. Purchaser sophistication weighs slightly in
Applicant’s favor. Overall, we find that confusion between Applicant’s PENTALABEL
EKLIPSE mark and Registrant’s mark is unlikely.
Serial No. 88628761
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Decision:
The likelihood of confusion refusal to register Applicant’s mark PENTALABEL
EKLIPSE for the goods in Class 16 has been withdrawn; this refusal as to the goods
in Class 17 is reversed.