Pet Valu Canada Inc.v.AO LLC

Trademark Trial and Appeal Board

Dec 13, 2019

91235598 (T.T.A.B. Dec. 13, 2019)

Mailed: December 13, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Pet Valu Canada Inc.

v.

AO LLC
_____

Opposition No. 91235598
_____

Roberta Jacobs-Meadway, Esq.,1
for Pet Valu Canada Inc.

Randy Michels of Trust Tree Legal, P.C.,
for Anderson Online LLC.
_____

Before Wolfson, Lykos, and Adlin, Administrative
Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

1 We note the change of address for Opposer’s counsel, and grant the petition to withdraw as
counsel for Opposer filed by Baker & Hostetler LLP on June 26, 2019, 40 TTABVUE.
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91235598
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Applicant, AO LLC (formerly Anderson Online LLC), seeks registration on the
Principal Register of the mark YOUR PETS. YOUR FAMILY. (in standard
characters) for “diapers for dogs” in International Class 5.2
Pet Valu Canada Inc. (“Opposer”) has opposed registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
the mark so resembles Opposer’s previously used and registered mark
YOUR PET. YOUR STORE on the Principal Register for “retail store services in the
field of pet supplies and pet food”3 as to be likely to cause confusion, mistake, or
deception among relevant consumers. Applicant admits that Opposer owns its
pleaded registration4 but otherwise denies the salient allegations in the Notice of
Opposition.
I. THE RECORD
The record includes the pleadings, and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the subject application. The record also includes:
A. Opposer’s Evidence
1. Testimony declaration of Alexandra Homa, Senior Marketing Manager of
Pet Valu, Inc. (identified as Opposer’s wholly-owned subsidiary5) with
Exhibits A-F (“Homa Decl.”).6

2 Application Serial No. 87374318, filed March 16, 2017, based upon Applicant’s claim of first
use and use in commerce on January 1, 2016, under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a).
3 Reg. No. 3989376 for the mark YOUR PET. YOUR STORE issued July 5, 2011; Sections 8
and 15 combined declaration accepted and acknowledged.
4 Answer, 8 TTABVUE 2.
5 Homa Decl., 14 TTABVUE 3; McSherry Decl., 16 TTABVUE 3.
6 14 TTABVUE (public version and Exhibits A-D and F); 15 TTABVUE (confidential version
and Exhibit E).
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2. Testimony declaration of Brett McSherry, Opposer’s Senior Digital
Marketing & Web Manager, with Exhibits A-H.7

3. Notices of Reliance on third-party registrations8 and Internet materials.9
4. Rebuttal Notice of Reliance on Internet materials.10
B. Applicant’s Evidence
1. Testimony declaration of Blake Anderson, Applicant’s founder and owner,
with Exhibits A-K.11

2. Notices of Reliance on Opposer’s responses to discovery propounded by
Applicant,12 third-party registrations,13 and Internet materials.14

II. STANDING AND PRIORITY
Opposer made its pleaded registration of record by attaching to its Notice of
Opposition printouts obtained from the Office’s TSDR database showing the
registration’s current status and title. Trademark Rule 2.122(d)(1). The registration
establishes Opposer’s standing. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Because Applicant has not
counterclaimed to cancel the registration, priority is not at issue as to the mark and
services covered thereby, namely, retail store services in the field of pet supplies and

7 16 TTABVUE (public version and Exhibits A, C-F); 17 TTABVUE (confidential version and
Exhibits B, G, and H).
8 19 TTABVUE.
9 20 TTABVUE.
10 29 TTABVUE.
11 28 TTABVUE.
12 24 TTABVUE.
13 Id.
14 24 TTABVUE (Opposer’s website); 25-27 TTABVUE (third-party materials).
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pet food. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ
108, 110 (CCPA 1974).
III. LIKELIHOOD OF CONFUSION
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973)
(“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). We make that determination on a case-by-case basis, On-Line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1474 (Fed. Cir.
2000), aided by the application of the factors set out in DuPont, and we consider each
DuPont factor for which there is evidence and argument. See In re Guild Mortg. Co.,
912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019); In re Country Oven, Inc.,
2019 USPQ2d 443903, *2 (TTAB 2019). “In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and services.” In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d
1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media Inc. v. Inventive Software, LLC,
2019 USPQ2d 311355, *5 (TTAB 2019); see also In re i.am.symbolic, llc, 866 F.3d
1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017); In re Dixie Rests. Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997). We have also considered the trade channels for the
goods and services, the classes of consumers, and their alleged sophistication.
A. Similarity of the marks
Applicant’s mark is YOUR PETS. YOUR FAMILY. Opposer’s mark is YOUR PET.
YOUR STORE. We consider and compare the appearance, sound, connotation and
Opposition No. 91235598
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commercial impression of the marks in their entireties. Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the
marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746
(TTAB 2018) aff’d, Slip Op. No. 18–2236 (Fed. Cir. Sept. 13, 2019) (mem); (citing In
re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). “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.” In re
i.am.symbolic, 123 USPQ2d at 1748; see also Coach Servs., 668 F.3d 1356, 101
USPQ2d 1723, 1721 (Fed. Cir. 2012); Double Coin Holdings Ltd. v. Tru Dev., 2019
USPQ2d 377409, [*6] (TTAB 2019); In re Am. Cruise Lines, Inc., 128 USPQ2d 1157,
1160 (TTAB 2018).
The marks are similar in appearance and pronunciation due to that fact that the
marks are each four words long; the first two words in each mark (“your pet(s)”) are
essentially identical; the third word of each mark (“your”) is identical; and the
structure and cadence of each mark (“your pet(s) … your [noun]) is the same. The
presence or absence of the final “s” in the word “pet” does not change the commercial
impression of the marks. See Weider Publ’ns, LLC v. D&D Beauty Care Co., 109
USPQ2d 1347, 1355 (TTAB 2014), appeal dismissed per stipulation, No. 2014-1461
(Fed. Cir. Oct. 10, 2014) (SHAPES is similar to SHAPE); In re Strategic Partners,
Inc., 102 USPQ2d 1397, 1399 (TTAB 2012) (“the difference between the singular form
ANYWEAR…and the plural form ANYWEARS…is not meaningful”); Chicago Bears
Opposition No. 91235598
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Football Club v. 12th Man/Tennessee LLC, 83 USPQ2d 1073, 1077 (TTAB 2007) (“we
cannot attribute much trademark significance to the difference in the plural and
singular form of the word ‘Bear’ in the marks”).
Although marks “must be considered as a whole in determining likelihood of
confusion,” Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233,
234 (CCPA 1981), different features may be analyzed to determine whether the
marks are confusingly similar. In re Detroit Athletic Co., 903 F.3d 1297,
128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching a
conclusion on the issue of confusion, 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.”)). Generally, it is the first part of a mark that “is most likely to be
impressed upon the mind of a purchaser and remembered.” Presto Prods. Inc. v. Nice-
Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); see also Palm Bay, 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).
Accordingly, consumers are likely to focus on the virtually identical first set of words
in the marks, “YOUR PET(S),” and pay less attention to the second set of words,
which in any event are also similar in a number of ways.
As to connotation, the phrase “YOUR FAMILY” in Applicant’s mark suggests the
idea of one’s pets being part of one’s family and the care that a person takes of the
pets that he or she owns. As Applicant argues, its mark “is metaphorical, focusing on
Opposition No. 91235598
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pets and owner’s relationships with their pets, even though pets are not family in
any literal sense.”15 In the cited mark, the phrase “YOUR STORE” does not invoke
the idea of one’s pet being part of a family but does offer similar intimacy in
encouraging the consumer to consider the merchandise that Opposer sells at its store
as being personally offered to him or her. Thus, the differences between the marks’
connotations are not enough to outweigh their highly similar appearances and
pronunciations
The first DuPont factor favors a finding of likelihood of confusion.
B. Use of similar marks by third parties
Applicant argues that there are many “pet-related marks [that] begin with the
words “YOUR PET,” and consumers must therefore “look to the balance of the marks
for source identification.”16 In support, Applicant submitted website printouts from
seven third-party vendors of pet services and related products,17 copies of 12 third-
party registrations for related goods and services,18 and a photograph Mr. Anderson
took while in attendance at the “2018 SuperZoo pet products trade show” that
prominently featured Purina’s YOUR PET, OUR PASSION. trademark:19

15 Applicant’s Brief, 34 TTABVUE 7.
16 34 TTABVUE 6.
17 Applicant’s second Notice of Reliance, Exhibits A-G, 25 TTABVUE 5-32.
18 Anderson Decl. Exhibit I, 28 TTABVUE 37-73.
19 Id., Exhibit J, 28 TTABVUE 75. Fourteen registrations were submitted, but two have been
cancelled (Reg. Nos. 4163334 and 4516413). Any benefits conferred by those registrations,
including the evidentiary presumptions afforded by Section 7(b) of the Trademark Act, were
lost when the registrations were cancelled. See Action Temp. Servs., Inc. v. Labor Force, Inc.,
870 F.2d 1563, 10 USPQ2d 1307, 1309 n.9 (Fed. Cir. 1989); Time Warner Ent. Co. v. Jones,
65 USPQ2d 1650 (TTAB 2002) (expired registration “is not evidence of anything except that
it issued”).

Opposition No. 91235598
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The seven websites advertise the following goods and services:20
• Pet sitting services under the mark YOUR PETS LOVE ME,
• In-home pet care under the mark YOUR PET AT HOME,
• Dog boarding, daycare, and grooming under the mark YOUR PET
BUTLER,
• Retail store services in the field of pet supplies and food, offering nutrition
advice, “canine massage therapy,” and pet grooming, all under the mark
YOUR PETS,
• Online retail store services in the field of pet supplies and food under the
mark YOUR PET STOP,
• Magazine devoted to pets under the mark YOUR PET, and
• Day care and boarding for pets under the mark YOUR PET SPACE.

The 12 registrations are:21
• Reg. No. 1593737 - YOUR PET DESERVES THE
BEST for pet supplies; renewed,
• Reg. No. 2905311 - YOUR PETS, OUR PASSION
for, inter alia, pet toys and treats; renewed,

20 Exhibits A-G, 28 TTABVUE 5-32.
21 Exhibit I, 28 TTABVUE 37-73.
Opposition No. 91235598
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• Reg. No. 3643058 - YOUR PETS ARE LIKE OUR
OWN for “pet hospital services; veterinary services”;
renewed,
• Reg. No. 3739640 – “YOUR PET'S BEST FRIEND”
for “vitamins for pets”; renewed,
• Reg. No. 3101906 - YOUR PET, OUR PASSION for
“pet food, pet treats, pet litter; providing information
on pet health care and pet nutrition”; renewed,
• Reg. No. 3979369 - YOUR PETOFFICE STOP
CHASING YOUR TAIL for “business
administration and office work”; Section 8
declaration accepted,
• Reg. No. 4038309 - YOUR PETS ARE OUR BABIES
TOO for “mail order catalog services featuring pet
supplies; retail store services featuring pet supplies;
and wholesale distributorships featuring pet
supplies”; Sections 8 and 15 combined declaration
accepted and acknowledged,
• Reg. No. 4474846 - YOUR PET’S VACATION
DESTINATION! for kennel services; registered
January 28, 2014,
• Reg. No. 4770654 - YOUR PET SPECIALISTS!
(stylized) for “veterinary services”; registered July 7,
2015,
• Reg. No. 5002493 - YOUR PET’S LOCAL FARMERS
MARKET for “retail store services featuring pet
supplies and pet accessories”; registered July 19,
2016,
• Reg. No. 5036480 - YOUR PET CAN’T WAIT TO
FEEL BETTER. for veterinary services, dentistry
and surgery; registered September 6, 2016, and
• Reg. No. 5254653 - YOUR PET LOVING EXPERT
for “veterinary services”; registered August 1, 2017.
Opposition No. 91235598
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Mr. Anderson also testified that he “conducted a Google internet search for third-
party uses of the words ‘your pet’ and ‘your pets’ at the beginning of trademarks” and
located the following third-party marks:22
• “Your Pet Experts” (and “Your Pet Experts LLC”) in
Pennsylvania,
• “Your Pet Chef LLC,”
• “YourPetChef.com,”
• “Your Pet Veterinarian Inc. in California,”
• “The Pet Depot in Hawaii’s YOUR PETS ARE THE
HEART OF OUR BUSINESS,”
• “Premier Pet Supply in Michigan’s YOUR PET’S
HAPPY PLACE,” and
• “Care A Lot Pet Supply Inc.’s YOUR PETS ARE
OUR BABIES TOO mark in Virginia.”
“The purpose of a defendant introducing third party uses is to show that
customers have become so conditioned by a plethora of such similar marks that
customers have been educated to distinguish between different such marks on the
bases of minute distinctions.” Palm Bay, 73 USPQ2d at 1694. While the “existence of
[third party] registrations is not evidence of what happens in the market place or that
customers are familiar with them,” In re I-Coat Co., LLC, 126 USPQ2d 1730, 1735
(TTAB 2018) (citing AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ
268, 269 (CCPA 1973)), third-party registrations can be used to demonstrate that a
term may have a commonly accepted meaning. See, e.g., In re Box Solutions Corp., 79
USPQ2d 1953, 1955 (TTAB 2006) (“[T]hird-party registrations can be used in the

22 28 TTABVUE 5.
Opposition No. 91235598
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manner of a dictionary definition to illustrate how a term is perceived in the trade or
industry”). “[E]xtensive evidence of third-party use and registrations is ‘powerful on
its face,’ even where the specific extent and impact of the usage has not been
established.” 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)
(14 third-party registrations and uses of paw print marks) (citing Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (26
third-party registrations and uses of marks containing the words “Peace” and
“Love”)).
On this record, we may conclude that as a result of the use and registration of
marks that begin with “YOUR PET,” the phrase is conceptually weak for pet-related
goods and services. However, only the marks “YOUR PETS, OUR PASSION” and
“YOUR PET. OUR PASSION” share the grammatical structure of aligning two short
phrases, as in Opposer’s mark, with the third term being similar to the first term.
The existence of only two highly similar third-party registrations does not
demonstrate that Opposer’s mark, as a whole, is commercially weak. Thus, the third-
party uses and registrations of “YOUR PET” marks do not show that the mark overall
is entitled to only a narrow scope of protection. At the same time, Opposer’s evidence
submitted to show that its mark is commercially strong, such as articles regarding
Opposer’s “Pet Valu” stores and internal trademark usage guidelines, is not
persuasive that its mark is entitled to a broader scope of protection.
The sixth DuPont factor is neutral.

Opposition No. 91235598
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B. Relatedness of the goods; Trade channels; Classes of consumers
We turn next to the second DuPont factor, which requires us to determine the
similarity or dissimilarity of the goods and services as identified in Applicant’s
application and Opposer’s registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014) (“the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application”); Octocom Sys., Inc. v. Houston
Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Hewlett-
Packard Co., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). The goods and
services need not be identical or even competitive in order to support a finding of
likelihood of confusion. See On-line Careline Inc., 56 USPQ2d at 1475; Recot, Inc. v.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). Rather, it is enough
that they are related in some manner or that some circumstances surrounding their
marketing are such that they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks used or intended to be used
therewith, to a mistaken belief that they originate from or are in some way associated
with the same producer or that there is an association between the producers of the
parties’ goods and services. Coach Servs., 101 USPQ2d at 1722; In re Melville Corp.,
18 USPQ2d 1386, 1388 (TTAB 1991).
Applicant’s goods are “diapers for dogs.” Opposer offers retail store services in the
field of pet supplies. Opposer’s recitation of services contains no restrictions on the
kinds of pet supplies sold at the retail level. Based on the recitation alone, we may
conclude that Opposer sells “diapers for dogs” because “pet supplies” is sufficiently
Opposition No. 91235598
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broad enough to include dog incontinence products. “It is well established that the
Board may not read limitations into an unrestricted registration or application.”
Country Oven, 2019 USPQ2d at [5] (citing i.am.symbolic, 123 USPQ2d at 1748); cf. In
re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (finding
that “applicant’s ‘general merchandise store services’ would include the sale of
furniture,” the goods in the cited registration); In re H.J. Seiler Co., 289 F.2d 674, 129
USPQ 347, 347-48 (CCPA 1961) (affirming likelihood of confusion when applicant
listed catering services and registrant listed smoked and cured meats); In re Thomas,
79 USPQ2d 1021, 1023 (TTAB 2006) (citing J. Thomas McCarthy, Trademarks and
Unfair Competition 24:25 (2006) (“[w]here the services consist of retail sales services,
likelihood of confusion is found when another mark is used on goods which are
commonly sold through such a retail outlet.”)). We find that the identifications in the
application and registration themselves support finding the goods and services are
related.
Opposer argues that it “presently sells third-party dog diapers under third-party
marks.”23 Opposer submitted the following pages advertising dog diapers from its
website at http://petvalu.com/:24

23 Answer No. 5 to Requests for Admissions, 24 TTABVUE 17.
24 Exhibit A, McSherry Decl., 16 TTABVUE 15 and 19.
Opposition No. 91235598
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Opposition No. 91235598
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Opposer has submitted additional evidence to show that retail pet stores sell dog
diapers. Two sets of registrations show that the same entity has registered its mark
for dog diapers and retail store services featuring diapers and two registrations cover
Opposition No. 91235598
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goods and services (but not diapers for dogs) under the same mark. These
registrations are described below:25
• First set of registrations owned by the same
company:
o Reg. No. 4316362 for the mark PUPPIA for
inter alia, “diapers for dogs; disposable pet
diapers”; Sections 8 and 15 combined
declaration accepted and acknowledged.
o Reg. No. 4389421 for the mark PUPPIA for,
inter alia, “computerized on-line ordering
services in the field of…disposable pet
diapers; mail order catalog services
featuring…disposable pet diapers; on-line
retail store services featuring…disposable pet
diapers; on-line wholesale store services
featuring… disposable pet diapers; retail pet
stores; wholesale ordering services in the field
of…disposable pet diapers”; Sections 8 and 15
combined declaration accepted and
acknowledged.
• Second set of registrations owned by the same
company:
o Reg. No. 4316371 for the mark PINKAHOLIC
for inter alia, “diapers for dogs; disposable pet
diapers;” registered July 25, 2012.26
o Reg. No. 4389422 for the mark PINKAHOLIC
for “computerized on-line ordering services in
the field of…disposable pet diapers; on-line
retail store services featuring…disposable pet
diapers; on-line wholesale store services

25 Thirty-two registrations were submitted, but two have been cancelled (Reg. Nos. 4309826
and 4275742). As noted above, any benefits conferred by the registrations, including the
evidentiary presumptions afforded by Section 7(b) of the Trademark Act, were lost when the
registrations were cancelled. See Action Temp. Servs., 10 USPQ2d at 1309; Time Warner Ent.
Co. v. Jones, 65 USPQ2d at 1650 (expired registration “is not evidence of anything except
that it issued”).
26 A Sections 8 and 15 combined declaration has been filed and is pending acceptance and
acknowledgment.
Opposition No. 91235598
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featuring…disposable pet diapers; retail pet
stores; wholesale ordering services in the field
of…disposable pet diapers; Sections 8 and 15
combined declaration accepted and
acknowledged.
• Registrations for retail stores and pet goods:
o Reg. No. 3187795 for the mark DAWG TIRED
and design for “pet beds” and “on-line retail
store services featuring dog related pet
products”; renewed.
o Reg. No. 3648194 for the mark YAP for pet-
related products such as shampoos, collars,
jewelry and rawhide chews and “on-line retail
store services featuring pet products; retail
store services featuring pet products”;
renewed.
Third-party registrations which individually cover a number of different items
and which are based on use in commerce serve to suggest that the listed goods and/or
services are of a type which may emanate from a single source. See In re I-Coat Co.,
126 USPQ2d at 1737 (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18
(TTAB 2001); Hewlett-Packard Co., 62 USPQ2d at 1004 (evidence that “a single
company sells the goods and services of both parties, if presented, is relevant to the
relatedness analysis”); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988));
TMEP §1207.01(d)(iii). These registrations thus provide further support for what
Opposer’s website shows − dog diapers may be sold in retail pet stores.
Because consumers seeking to purchase diapers for dogs would likely find them
at retail pet stores, we find that the circumstances surrounding the marketing of the
parties’ respective goods and services are such that it is likely the same persons would
Opposition No. 91235598
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encounter both parties’ marks under circumstances which could give rise to a
mistaken belief that the goods and services originate from or are in some way
associated with the same producer.
Accordingly, the second DuPont factor favors a finding of likelihood of confusion.
The third DuPont factor favors a finding of no likelihood of confusion.
C. Purchaser Sophistication
Applicant argues that consumers of dog diapers are “careful to purchase dog
diapers that are high quality, comfortable, easy-to-use, washable, and highly
absorbent.27 Applicant’s dog diapers were named a “top healthcare pet product of
2018 by a leading pet industry magazine, Pet Business Magazine.”28 Because of the
health considerations of incontinence, gastrointestinal upset or urinary tract
infections, the average customer for dog diapers is likely to be a discerning consumer,
although the products do not require a sophisticated medical understanding. This
DuPont factor slightly favors Applicant.
IV. CONCLUSION
After considering all of the evidence made of record pertaining to the issue of
likelihood of confusion, as well as all of the arguments related thereto, including any
evidence and arguments not specifically discussed in this opinion, we conclude that
confusion is likely between Applicant’s YOUR PETS. YOUR FAMILY. mark for
“diapers for dogs” and Opposer’s mark YOUR PET. YOUR STORE for Opposer’s retail
store services. We conclude so principally due to the similarities between the marks,

27 28 TTABVUE 5.
28 28 TTABVUE 6, Exhibit K, Id. at 98.
Opposition No. 91235598
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Opposer’s retail store services encompassing the retail sale of dog diapers, the
circumstances under which the goods and services are likely to be marketed and sold
and the identity in classes of purchasers. We find these factors to outweigh purchaser
discrimination.
Decision: The opposition on the ground of likelihood of confusion is sustained.