THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed:
October 11, 2012
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Shameless Swimwear, L.L.C.
_____
Serial Nos. 85262472 and 852624961
_____
Timothy J. Zarley of Zarley Law Firm, P.L.C. for Shameless Swimwear, L.L.C.
Anthony M. Rinker, Trademark Examining Attorney, Law Office 102 (Karen M. Strzyz,
Managing Attorney).
_____
Before Kuhlke, Wolfson and Greenbaum, Administrative Trademark Judges.
Opinion by Wolfson, Administrative Trademark Judge:
Shameless Swimwear, L.L.C. (“applicant”) seeks registration on the Principal
Register of the marks SHAMELESS SWIMWEAR2 and SHAMELESS COUTURE3
(both in standard characters) for goods ultimately identified in the applications as
follows:
1 Although these cases are not consolidated, they present related questions of law and fact.
Accordingly, we have issued a single opinion determining both applications.
2 Application Serial No. 85262472 for the mark SHAMELESS SWIMWEAR was filed on
March 9, 2011, based on an allegation of applicant’s first use and first use in commerce as
of March 7, 2011. The application includes the following disclaimer: No claim is made to
the exclusive right to use “SWIMWEAR” apart from the mark as shown.
3 Application Serial No. 85262496 for the mark SHAMELESS COUTURE was filed on
March 9, 2011, based on an allegation of applicant’s bona fide intent to use the mark in
commerce. The application includes the following disclaimer: No claim is made to the
exclusive right to use “COUTURE” apart from the mark as shown.
Opposition Nos. 85262496 and 85262472
2
SHAMELESS SWIMWEAR:
“swimwear, namely, high-end, haute couture bathing
suits, bikinis, monokinis and cover-ups” in International
Class 25.
SHAMELESS COUTURE:
“women’s clothing, namely, high-end bathing suits,
bikinis, monokinis, cover-ups, tops, shirts, blouses,
dresses, skirts, pants, sweaters, scarves” in International
Class 25.
The Trademark Examining Attorney has refused registration of applicant’s
marks under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), having
determined that registration would lead to a likelihood of confusion in view of the
goods recited in Reg. No. 2259492 for the mark SHAMELESS (in standard
character format). These goods are: “clothing, namely, tops, shirts, dresses, skirts,
pants, sweaters, and knit shirts” in International Class 25.4
After the examining attorney made the refusals final, applicant appealed to
this Board. We affirm.
Applicable Law
Our determination under Trademark Act Section 2(d) is based on an analysis
of the probative facts in evidence that are relevant to the factors bearing on a
likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
4 Registered July 6, 1999; renewed.
Opposition Nos. 85262496 and 85262472
3
2003); and In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the
marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976); see also In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209
(TTAB 1999).
A. Comparison of the Marks
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. Palm Bay, 73 USPQ2d at 1692. The test,
under the first du Pont factor, 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.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the 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 National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). On the other hand, different features may be
analyzed to determine whether the marks are similar. Price Candy Company v.
Gold Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In
fact, there is nothing improper in stating that, for rational reasons, more or less
Opposition Nos. 85262496 and 85262472
4
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. In re National
Data Corp., 224 USPQ at 751. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
We have examined each mark independently to determine if it is sufficiently
similar to the cited registration such that source confusion is likely to result.
SHAMELESS COUTURE
Applicant’s mark SHAMELESS COUTURE incorporates the cited mark
SHAMELESS in its entirety. Where a mark incorporates the entire registered
mark of another, a likelihood of confusion has often been found. See Coca-Cola
Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526
F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for
club soda, quinine water and ginger ale is likely to cause confusion with BENGAL
for gin); Johnson Publishing Co. v. International Development Ltd., 221 USPQ 155,
156 (TTAB 1982) (applicant’s mark EBONY DRUM for hairdressing and conditioner
is likely to cause confusion with EBONY for cosmetics); In re Cosvetic Laboratories,
Inc., 202 USPQ 842 (TTAB 1979) (applicant’s mark HEAD START COSVETIC for
vitamins for hair conditioners and shampoo is likely to cause confusion with HEAD
START for men’s hair lotion and after-shaving lotion). For this reason, the marks
are similar in appearance and pronunciation.
Opposition Nos. 85262496 and 85262472
5
The marks are also similar in connotation and commercial impression. The
examining attorney has provided the following dictionary definitions of the term
“couture”:5
1. the occupation of a couturier; dressmaking and
designing,
2. fashion designers or couturiers collectively,
3. the clothes and related articles designed by such
designers.
+EXPAND6
-adjective
5. created or produced by a fashion designer: couture
clothes,
6. being, having, or suggesting the style, quality, etc., of a
fashion designer; very fashionable: the couture look.
We take judicial notice of the following definitions of “shameless” and
“shame.”7 “Shameless” is defined as:
1: having no shame : insensible to disgrace
2: showing lack of shame
“Shame” is defined as:
1a: a painful emotion caused by consciousness of guilt,
shortcoming, or impropriety
5 From http://dictionary.reference.com,First Office action, June 13, 2011.
6 First Office action, June 13, 2011. The examining attorney did not “expand” the results of
this listing; thus, there is no item numbered “4” in the definitions.
7 The Board may take judicial notice of dictionary evidence. University of Notre Dame du
Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372,
217 USPQ 505 (Fed. Cir. 1983); see also TBMP §704.12 (3d ed. 1st rev. 2012).
Opposition Nos. 85262496 and 85262472
6
b: the susceptibility to such emotion
2: a condition of humiliating disgrace or disrepute :
ignominy
3a: something that brings censure or reproach; also :
something to be regretted : pity
b: a cause of feeling shame
Although we consider applicant’s mark in its entirety, greater significance is
accorded to the word SHAMELESS. The term COUTURE is merely descriptive of a
type of clothing, while the word SHAMELESS is arbitrary in relation to the goods.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed.
Cir. 2000), quoting, In re National Data Corp., 224 USPQ at 752 (“Regarding
descriptive terms, this court has noted that the descriptive component of a mark
may be given little weight in reaching a conclusion on the likelihood of confusion.”).
The term SHAMELESS is also considered the dominant element in the mark
because it is the first word in the mark. See Presto Products v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which
is most likely to be impressed upon the mind of a purchaser and remembered”);
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); and Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering
the marks, consumers will first notice the identical lead word).
Opposition Nos. 85262496 and 85262472
7
Applicant argues that the inclusion of the word COUTURE in its mark
imparts a “bizarre or incongruous meaning” to the mark, thereby distinguishing it
from the cited registration:
The term "COUTURE" conjures images of high fashion,
specifically, exclusive custom-fitted clothing, made to
order for a specific customer, and made from high-
quality, expensive fabric and sewn with extreme attention
to detail.
…
This highly unique and distinctive impression of high
fashion, refinement, and quality conveyed by the term
"COUTURE" is afforded with a more distinguished,
elevated significance particularly when coupled with the
incongruous term "SHAMELESS", thus juxtaposing the
refined, exclusive, and expensive qualities evoked by the
term "COUTURE" with the flamboyant, outrageous,
daring, and audacious characteristics of the term
"SHAMELESS" to create a highly distinctive mark having
a unique and distinguishable connotation in the minds of
consumers. Thus, Applicant's presentation of the term
"SHAMELESS" as a descriptor of the term "COUTURE"
not only endows the mark with a distinctive and unique
connotation, but also provides a particular emphasis
incorporating a specific and palpable meaning to the term
"COUTURE" in relation to Applicant's high-end,
expensive goods such that the term has elevated
significance and operates as an indicator of source.”
(internal citations omitted).8
Applicant’s argument that there is an incongruity in the mark that provides
a “specific and palpable meaning to the term ‘COUTURE’,” which imbues its mark
with “elevated significance,” is not persuasive. Based on the above definition of
“couture,” it is not improbable that the word is simply taken by a prospective buyer
as meaning: this product was designed by a couturier and is not mass-produced.
8 Applicant’s Brief, p. 15.
Opposition Nos. 85262496 and 85262472
8
Moreover, the word “couture” also refers to an occupation, and collectively to
couturiers; it does not, however, describe a characteristic of a person as does the
word “shameless.” Therefore, the alleged incongruity may be nonexistent to the
extent each word retains its ordinary dictionary meaning. Finally, even accepting
applicant’s argument that it would be incongruous for clothing to be both “refined,
exclusive, and expensive” and “flamboyant, outrageous, daring, and audacious,”
both applicant and registrant have listed identical goods in their identifications of
goods, and registrant’s goods are not limited to “low-end” or non-couture fashion.
The cited mark SHAMELESS could similarly evoke the same alleged incongruity,
particularly should registrant’s goods be, in fact, high-end, fashionable designer
clothing. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (an
applicant may not restrict the scope of goods in an otherwise unrestricted
registration by argument or extrinsic evidence).
Accordingly, we find the marks SHAMELESS and SHAMELESS COUTURE
to be similar in appearance, pronunciation, connotation and commercial impression.
This du Pont factor favors a finding of likelihood of confusion.
SHAMELESS SWIMWEAR
For the reasons stated above, applicant’s mark SHAMELESS SWIMWEAR is
also similar to the cited mark SHAMELESS. The addition of the word “swimwear”
to “shameless” is even less distinguishing than is the addition of the term “couture,”
inasmuch as the term SWIMWEAR is the generic name for the goods. As such, it
has no source-identifying value. Rather, it is the arbitrary term SHAMELESS that
creates the commercial impression of applicant’s mark SHAMELESS SWIMWEAR.
Opposition Nos. 85262496 and 85262472
9
Accordingly, the marks SHAMELESS and SHAMELESS SWIMWEAR are similar
in appearance, pronunciation, connotation and commercial impression. This du
Pont factor favors a finding of likelihood of confusion.
B. Similarity of Goods
We next turn our attention to a comparison of the similarity or dissimilarity
of the goods described in the applications and cited registration. We base our
evaluation on the goods as they are identified in the registration and applications.
Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (“This ‘relatedness of the
goods’ factor compares the goods and services in the applicant’s application with the
goods and services in the opposer’s registration.”). It is unnecessary for the
respective goods to be identical or even competitive in order to find that they are
related for purposes of our likelihood of confusion analysis, because the issue is not
whether consumers would confuse the goods themselves, but rather whether they
would be confused as to the source of the goods. See Hewlett-Packard Co., 62
USPQ2d at 1005 (“Even if the goods and services in question are not identical, the
consuming public may perceive them as related enough to cause confusion about the
source or origin of the goods and services”); In re Rexel Inc., 223 USPQ 830 (TTAB
1984). The goods need only be sufficiently related that consumers would be likely to
assume, upon encountering the goods under similar marks, that the goods originate
from, are sponsored or authorized by, or are otherwise connected to the same
Opposition Nos. 85262496 and 85262472
10
source. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ
1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Applicant’s goods are identified as high-end women’s clothing. With respect
to the mark SHAMELESS COUTURE, such goods include “tops,” “shirts,” “dresses,”
“skirts,” “pants,” and “sweaters.” These goods are identical to the following goods
identified in the cited registration: “tops,” “shirts,” “dresses,” “skirts,” “pants,” and
“sweaters.”
With respect to the mark SHAMELESS SWIMWEAR, the goods are “high-
end, haute couture bathing suits, bikinis, monokinis and cover-ups.” These goods
are related to the registrant’s “clothing, namely, tops, shirts, dresses, skirts, pants,
sweaters, and knit shirts.” The examining attorney has submitted copies of use-
based, third-party registrations that suggest that bathing suits, swimwear and
clothing such as tops, shirts, dresses and pants may emanate from a single source.
See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (“Third-
party registrations which cover a number of differing goods and/or services, and
which are based on use in commerce, although not evidence that the marks shown
therein are in use on a commercial scale or that the public is familiar with them,
may nevertheless have some probative value to the extent that they may serve to
suggest that such goods or services are of a type which may emanate from a single
source”), aff’d, 864 F.2d 149 (Fed. Cir. 1988); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993) (evidence that four entities have registered their
marks, totaling five registrations, both for goods of the type listed in applicant's
Opposition Nos. 85262496 and 85262472
11
application and for goods of the type recited in registrant's registration suggest that
these goods may come from a single source).
The third-party registrations of record in this case that show these types of
goods being registered by a single entity include the following (for ease of reference,
goods that are found in applicant’s identifications of goods in either of its
applications are in bold; goods found in registrant’s identification are in italics; and
goods found in both the application for the mark SHAMELESS COUTURE and the
cited registration are in bold and italicized. Note that only identical listings (e.g.,
“shirts” not “t-shirts”) have been emphasized):
Reg. No. 3969059 for the mark TAHOE VICE for
“Bathing suits; Gloves as clothing; Hats; Hooded sweat
shirts; Shirts; T-shirts; Tee shirts; Wearable garments
and clothing, namely, shirts.”
Reg. No. 3963482 for the mark for “clothing for
men, women, and children, namely, shirts, T-shirts,
sweatshirts, sweaters, tops, tank tops, tights, rompers,
pants, bottoms, sweatpants, shorts, trousers, skirts,
dresses, blouses, halters, uniforms, suits, jogging suits,
warm-up suits, blazers, bathing suits, coats, jackets,
vests, rainwear, jumpers, cardigans, undergarments,
lingerie, corsets, camisoles, bustier, bras, undershirts,
boxer shorts, pajamas, hosiery, socks, stockings,
nightgowns, robes, headbands, wristbands, hats, caps,
visors, scarves, mufflers, gloves, belts, and suspenders.”
Reg. No. 3967827 for the mark QUALITY PEOPLES for
“Clothing in the nature of casual wear, beachwear,
sportswear and clothing for swimming, and surfing,
namely, wetsuits, swimsuits, bikinis, short-sleeved
shirts, long-sleeved shirts, bandanas, belts, jackets, vests,
sweaters, sweatshirts, sweatpants, gloves, mittens,
scarves, skirts, pants, dresses, and shorts; rash guards,
namely, rash shirts and rash vests; footwear in the nature
Opposition Nos. 85262496 and 85262472
12
of sandals, tennis shoes and flip-flops, headwear in the
nature of hats, caps, visors, and headbands.”
Reg. No. 3963621 for the mark JAKE POODLES for, inter
alia, “Clothing, namely, shirts, shorts, pants, dresses,
ponchos, coats, bathing suits, aprons, parkas, shoes and
gloves; Rain gear, namely, boots, coats, slickers, suits and
trousers; Headgear, namely, hats, caps and bandanas;
Baby clothing, namely, cloth bibs and pajamas; Halloween
costumes and costume masks sold as a unit.”
Reg. No. 3963657 for the mark UNSPOKEN for “Bras,
Panties, Sleepwear, Sweat pants, T-shirts, Bathing
Suits, Tank Tops, Bathrobes, Night Gowns, Negligees,
Pants, Slips, Slippers, Bustiers, Corsets, Teddies,
Hosiery, Body suits, Garter belts, Waist cinchers,
Stockings, Robes, Sarongs, Wraps, Slippers and Socks.”
Reg. No. 3940934 for the mark MANIC PANIC
(STYLIZED) for “Aprons; Bandanas; Bathing caps;
Bathing suits; Beach cover-ups; Beach footwear;
Beachwear; Beanies; Belts; Bikinis; Blouses; Bodices;
Boxer shorts; Bustiers; Camisoles; Caps; Chemises;
Children's and infant's apparel, namely, jumpers, overall
sleepwear, pajamas, rompers and one-piece garments;
Children's headwear; Coats; Dresses; Flip flops;
Footwear; Gloves; Halloween costumes; Halloween
costumes and masks sold in connection therewith; Hats;
Headwear; Hosiery; Infant wear; Jackets; Jeans;
Leggings; Lingerie; Loungewear; Masquerade costumes;
Masquerade costumes and masks sold in connection
therewith; Miniskirts; Mittens; Nighties; Nightshirts;
Nightwear; Pajamas; Pullovers; Sandals and beach shoes;
Saris; Sarongs; Scarves; Shirts; Slacks; Sleepwear;
Socks; Sundresses; Sweat pants; Sweat shirts; Sweat
suits; Sweaters; Swim caps; Swim trunks; Swim wear;
Swimming caps; Swimsuits; Swimwear; T-shirts; Tank
tops; Tankinis; Thongs; Tops; Trousers.”
Reg. No. 3961689 for the mark TEMPORARY ROMANCE
for “Belts for clothing; Bikinis; Blouses; Boxer briefs;
Bras; Caps with visors; Dress shirts; G-strings; Hats;
Jeans; Lingerie; Neckties; Pants; Scarves; Shirts;
Socks; T-shirts; Underwear.”
Opposition Nos. 85262496 and 85262472
13
Reg. No. 3966229 for the mark for “Clothing,
namely T-shirts, sweatshirts, hooded sweatshirts, jackets,
shirts, polo shirts; shorts, underwear, namely boxers,
thongs; socks; swimwear, namely bikinis and bathing
suits; wrist bands; headwear, namely, caps, hats,
beanies, head bands, scarves and bandanas; footwear,
namely, flip flops.”
Reg. No. 3973772 for the mark SAVAAN for “Swimwear,
shorts, pants, tank-tops, shirts, t-shirts, tunics, cover-
ups, hooded sweatshirts, dresses, footwear, headwear,
jackets, skirts, socks, active wear, namely, tops with
incorporated sports bra.”
Reg. No. 3974000 for the mark IVLW for “clothing,
namely, t-shirts, sweaters, shorts, boardshorts, pants,
bikinis, shoes, hats, jackets, bandanas.”
Reg. No. 3974192 for the mark HEAD HELD HIGH and
Design for “Belts; Bikinis; Board shorts; Hats; Jackets;
Pants; Polo shirts; Shoes; Shorts; Socks; Sweaters; T-
shirts.”
Reg. No. 3974667 for the mark LAVENDER HILL for
“Bathing suits; Capris; Coats; Denims; Dress suits;
Dresses; Knit tops; Ladies' suits; Lingerie; Pants; Shorts;
Sweaters; Sweatshirts.”
These registrations are evidence of the relatedness of applicant’s swimwear with
registrant’s “tops, shirts, dresses, skirts, pants, sweaters, and knit shirts.”
In addition, the examining attorney has made of record copies of web pages
from an Internet search that show several designers offering swimwear and other
women’s clothing under a single mark.9 In the first example, designer Calvin Klein
advertises a “Calvin Klein Solids Crossover Swim Dress” on www.google.com, and
9 Denial of Request for Reconsideration, January 19, 2012.
Opposition Nos. 85262496 and 85262472
14
what appears to be a coat, a dress, and a two-piece dress and jacket combination10
under the CALVIN KLEIN mark on www.zappos.com. In a second example,
TOMMY HILFIGER swimwear and women’s tops, shirts and blouses are shown at
http://usa.tommy.com/. And at http://www.swimoutlet.com/Anne-Klein, there is a
bathing suit shown alongside the copy: “Anne Klein™ swimwear has become
synonymous with American style,” while at www.anneklein.com, there are jackets,
blazers, blouses, shirts, sweaters, tees, knits and camisoles being advertised under
the ANNE KLEIN mark. This evidence demonstrates that women’s bathing suits
are related to other types of women’s clothing.
This du Pont factor favors a finding of likelihood of confusion.
C. Trade Channels; Purchasers
Applicant argues that there is no likelihood of confusion because the goods
are sold through different trade channels, at price points sufficiently different to
avoid an overlap of prospective purchasers. In particular, applicant alleges that its
goods “are marketed to fashion and style-conscious, sophisticated consumers having
price concerns which are likely secondary or non-existent in comparison to their
desire to obtain a premium piece from a particular designer or brand unlike the
conditions surrounding typical consumers of similar goods or those of the
Registrant.”11 Applicant further alleges that its customers are “prepared to pay
10 There are pictures of each of these items, but no written description. We presume from
the pictures that the items are a coat, a dress, and a two-piece dress and jacket
combination.
11 Applicant’s Brief p. 18.
Opposition Nos. 85262496 and 85262472
15
prices well in excess of even high-end department stores for ultra-premium
pieces.”12
Applicant’s reliance on the alleged disparity between the prices of the parties’
goods is misplaced. Because the goods identified in the cited registration, “clothing,
namely, tops, shirts, dresses, skirts, pants, sweaters, and knit shirts,” are
unrestricted in terms of price, style, channels of distribution or classes of
consumers, they may include clothing sold in high-end retail or fashion outlets.
Thus, while applicant may seek to attract and target more highly selective
customers than those of registrant’s goods, the registration does not restrict
registrant from selling goods at applicant’s price points or targeting highly selective
customers. “[A]bsent restrictions in the application and registration, goods and
services are presumed to travel in the same channels of trade to the same class of
purchasers.” Hewlett-Packard, 62 USPQ2d at 1005; see also, Bercut-Vandervoort,
229 USPQ at 765 (“[T]he question of likelihood of confusion must be determined by
an analysis of the marks as applied to the goods identified in the application vis-à-
vis the goods recited in the registration, rather than what extrinsic evidence shows
those goods to be.”) .
Moreover, the examining attorney’s search of the website “www.google.com”
for “designer swimwear clothing” includes links to bathing suit retailers for suits
ranging from around $14 to a high of $353.13 This evidence suggests that bathing
suits at all price points are advertised and sold through similar trade channels to
12 Id., p. 20.
13 Denial of Request for Reconsideration, January 19, 2012.
Opposition Nos. 85262496 and 85262472
16
the same classes of purchasers. Applicant’s argument, comparing the market for
“Burberry” brand blouses with registrant’s market for blouses in an attempt to
show that registrant and applicant sell their goods at markedly different price
points, as well as applicant’s evidence of the price of clothing purportedly sold by
registrant under different, unrelated, marks, is irrelevant. Even assuming that
registrant sells clothing under other marks at lower price points, registrant may
intend its SHAMELESS line of clothing to be high-end and sold at higher price
points, which would place them squarely in the same trade channels for purchase
by the same classes of consumers as applicant’s goods.
In view of the above, these du Pont factors weigh in favor of a finding of
likelihood of confusion.
D. Balancing the factors.
Applicant’s marks SHAMELESS COUTURE and SHAMELESS SWIMWEAR
are similar to registrant’s mark SHAMELESS. The goods are related and are likely
to be sold in similar trade channels to the same classes of consumers. Accordingly,
we find that applicant’s registration of its marks is likely to cause confusion with
the cited mark.
Decision: The refusals to registration of applicant’s marks SHAMELESS
COUTURE and SHAMELESS SWIMWEAR under Trademark Act Section 2(d) are
affirmed.
