Skechers U.S.A., Inc. II

Trademark Trial and Appeal BoardMar 30, 2012

No. 77922983 (T.T.A.B. Mar. 30, 2012)

Mailed: March 30, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Skechers U.S.A., Inc. II ________ Serial No. 77922983 _______ Marshall A. Lerner of Kleinberg and Lerner LLP for Skechers U.S.A., Inc. II. Susan Kastriner Lawrence, Trademark Examining Attorney, Law Office 116 (Michael W. Baird, Managing Attorney). _______ Before Quinn, Wellington and Kuczma, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Skechers U.S.A., Inc. II (“applicant”) filed an intent-to-use application for the mark TWINKLE TOES with a standard character claim for the following goods in Class 28, as amended: Dolls, excluding dolls relating to characters from children’s books; doll clothing; and doll accessories. Registration of applicant’s mark was refused under § 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 77922983 2 because of a likelihood of confusion with the registered mark TWINKLE TOES with a standard character claim for:1 Series of books for children; children’s activity books; children’s books; children storybooks; song books in Class 16. Applicant appeals from the final refusal under § 2(d). Preliminary Issue A. Evidence Included in Applicant’s Reply Brief Applicant’s Reply Brief included a chart of third- party registrations that were not previously identified or submitted. The Board will ordinarily not consider such additional evidence filed by the appellant or the examiner after the appeal is filed. Trademark Rule 2.142(d). However, evidence submitted after appeal, without a granted request to suspend and remand for additional evidence as outlined in TBMP § 1207.02 (3d. ed. 2011), may be considered by the Board, despite its untimeliness, if the nonoffering party: (1) does not object to the new evidence, and (2) discusses the new evidence or otherwise affirmatively treats it as being of record. TBMP § 1207.03. Because the chart of third-party registrations was contained in applicant’s Reply Brief, the examining 1 Registration No. 3261904, issued July 10, 2007. Serial No. 77922983 3 attorney did not have an opportunity to address or object to the chart. Additionally, submission of a list of registration numbers does not place the registrations into the record. To make registrations of record, copies of printouts from the USPTO’s automated database system must be submitted. In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB 1994). Applicant did not submit copies of printouts from the USPTO’s automated database for the third-party registrations identified in its chart. In view of the foregoing, the chart of third-party registrations in applicant’s Reply Brief is untimely and not in the proper form, and accordingly, has not been considered. Likelihood of Confusion Our determination of likelihood of confusion under § 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and/or services. Serial No. 77922983 4 Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, (CCPA 1976). Based on the evidence submitted, we also consider the similarity of trade channels and buyers to whom sales are made, and the number and nature of similar marks in use on similar products. A. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. We first address the du Pont factor involving the similarity or dissimilarity of the marks in their entireties as to appearance, sound, meaning, connotation and commercial impression. du Pont, 177 USPQ at 567. While there is no dispute that the marks are identical in appearance and sound, applicant contends that the marks differ in meaning and commercial impression. The term “twinkletoes” is defined as: “a person who is quick and nimble on their feet; a dancer.”2 Inasmuch as the term “twinkletoes” essentially has one meaning, applicant’s and registrant’s marks are identical, and there is no 2 http://dictinary.reference.com/browse/twinkletoes Dictionary.com’s 21st Century Lexicon, Copyright 2003-2012 Dictionary.com, LLC. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 77922983 5 showing that the meaning will vary based on the respective goods, the marks necessarily have the same meaning. In considering the connotation and overall impression of the marks, we are compelled to consider the nature of the respective goods and services. See, e.g., TBC Corp. v. Holsa Inc., 126 F.3d 1470, 44 USPQ2d 1315, 1317 (Fed. Cir. 1997) (court discounted “distinct connotation” of GRAND SLAM in relation to bridge, baseball, golf and tennis as irrelevant and noting that GRAND SLAM is wholly arbitrary for automobile tires) and Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (COACH for luxury leather fashion accessories brings to mind traveling by carriage which is different from commercial impression of COACH for educational materials). Thus, the connotation and commercial impression of mark TWINKLE TOES depends on the type of products with which it is used. Applicant argues that its TWINKLE TOES mark evokes a young female character used in connection with shoes and apparel and that registrant’s products have a different connotation because its goods are used in conjunction with children’s educational material designed to inspire children’s imagination, self-confidence and English Serial No. 77922983 6 reading.3 In addition to considering the goods on which a mark is used, the context in which the mark is used can also be considered as that is how purchasers encounter the mark. Morton-Norwich Products, Inc. v. S.C. Johnson & Son, Inc., 531 F.2d 561, 189 USPQ 413, 414-15 (CCPA 1976) and Presto Products Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). Because applicant has not submitted any evidence showing use of its TWINKLE TOES mark in connection with the products covered in its application, there is no evidence to support its contention that its TWINKLE TOES dolls embody the same character used in context with applicant’s shoes and apparel.4 Even if such evidence exists, the identification of goods in the application does not restrict use of its mark to such goods. We must determine the connotation and commercial impression of applicant’s mark in connection with the goods set forth in its application. In view of the defined meaning of the term “twinkletoes” and applicant’s admission that its mark evokes a character, the connotation and commercial impression of applicant’s mark is a doll that embodies a 3 Applicant’s Brief p. 9. 4 Applicant’s Brief p. 11; Applicant’s Reply Brief p. 5. Serial No. 77922983 7 character, excluding dolls relating to characters from children’s books.5 In an attempt to demonstrate that registrant’s mark has a different commercial impression from applicant’s mark, applicant submits pages from the website www.dreamalings.com presumably showing some of registrant’s TWINKLE TOES products, which are marketed with various characters, as products that inspire children’s imagination, self-confidence and English reading.6 Rather than evidencing a different commercial impression, registrant’s website underscores the similar connotation and commercial impression of the TWINKLE TOES mark with respect to applicant’s and registrant’s respective products. Namely, they are products intended for children that are marketed in connection with a character. The fact that the products are intended for children underscores the similarity in connotation and commercial impression of the mark TWINKLE TOES whether for dolls or children’s books.7 5 Applicant’s Brief p. 9.; Applicant’s Exhibit 2 to March 30, 2011 Request for Reconsideration. 6 We note that the website bears a copyright notice in the name of Jamie Abromovitz, the owner of the cited registration. 7 Applicant’s Brief pp. 9, 10, 15, 16; Reply Brief p. 2; Examining Attorney’s Brief (unnumbered) p. 8. Serial No. 77922983 8 In view of the foregoing, applicant’s TWINKLE TOES mark is identical to the TWINKLE TOES mark in the cited registration in terms of appearance and sound, and is similar in meaning, connotation and commercial impression to the cited mark. B. The Similarity or Dissimilarity and Nature of the Goods and Services, Channels of Trade and Classes of Consumers. We now turn to the du Pont factor regarding the similarity or dissimilarity and nature of the goods described in the application and cited registration. The issue of likelihood of confusion must be determined on the basis of the parties’ goods as they are set forth in the involved registration and application, rather than in light of what the goods actually are as may be shown by any extrinsic evidence. See, e.g., Octocom Systems Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, Nat. Ass’n, 811 F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed. Cir. 1987); and CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983). When the marks are identical, it is only necessary that there be a viable relationship between the goods or services to support a finding of likelihood of confusion. Serial No. 77922983 9 In re Concordia Int'l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). The goods and/or services need not be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that the goods and/or services 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 each of the parties’ goods and/or services. In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). Attempting to distinguish registrant’s children’s books from applicant’s dolls, applicant submitted copies of pages that were allegedly obtained from registrant’s website.8 Applicant argues the webpages show that registrant’s books are for educational purposes. However, this fact plays no role in our determination because the goods described in the cited registration are “children’s books,” without any restriction as to their subject matter. 8 Applicant’s Exhibits 3-5, and 11 to March 30, 2011 Request for Reconsideration. Serial No. 77922983 10 To support the relatedness of the goods, the examining attorney submitted evidence of 18 use-based, third-party registrations that serve to suggest that applicant’s dolls and registrant’s children’s books may emanate from a single source. Fifteen of the 18 registrations specifically recite children’s books/children’s activity books and dolls.9 While these registrations are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless have probative value to the extent they serve to suggest that that the goods listed therein are of a kind which may emanate from a single source under a single mark. See In re Davey Products Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Applicant argues that some of the registrations cited by the examining attorney have diminished value because they include lengthy lists of goods which are so comprehensive as to be of limited evidentiary value.10 Even if we disregard those registrations that contain lengthier 9 These third-party registrations submitted by examining attorney accompanied the April 12, 2010 Office Action. Three of the 18 registrations referenced toys but did not specifically mention “dolls.” 10 Applicant’s Brief pp. 13-14. Serial No. 77922983 11 product listings and cover numerous Classes, a sufficient number of pertinent registrations remain. The registrations listed below readily demonstrate the relatedness of the goods:11 Registration No. Mark Goods 2974701 (2 Classes) ZOE BALLERINA Children’s books and Dolls 3168809 (3 Classes) FROOT LOOPS Children’s books and Dolls 3326390 (2 Classes) LETS BABIES BE BABIES Children’s books and Dolls 3326464 (2 Classes) HYGIENE HEROES Children’s books and Dolls 3469320 (4 Classes) KIDS STUFF Children’s activity books and Dolls 3584615 (2 Classes) TRY RANNOSAURUS Series of children’s books and Dolls 3690730 (3 Classes) CAPTAIN GLOBE Activity books for . . . teaching children and Dolls As reflected in the above chart, there are several registrations covering both dolls and children’s books that are limited to a handful of Classes, with many of these registrations containing only Classes 16 and 28, the two Classes covering books and dolls, respectively. The internet materials submitted by the examining attorney with the Office Action of October 5, 2010, provide further support for the relatedness of the parties’ goods 11 We have only listed the goods in each of the registrations that are pertinent to the goods identified in applicant’s application and the cited registration. Serial No. 77922983 12 as they evidence the marketing and offering for sale of books and dolls on the same pages and/or sections of the websites in connection with the same marks: “If you’re looking for Madeline dolls, Madeline toys, Madeline books. . .” and also contains references to “Madeline Books, Madeline Story Books, Madeline Activity Books Even a paper Doll Book! . . . Don’t Forget Your Christmas Madeline Doll!” And a link to: “Common questions about Madeline and Madeline dolls!” Advertises Fancy Nancy books and Fancy Nancy cloth Doll Advertises Only Hearts Club Theme Dolls & Outfits, Princess Dolls & Outfits, Heart Rock™ Star Dolls & Outfits and Books Webpage includes listings for “Elizabeth Mini Doll (American Girls Collection Series)” and for the book “A Smart Girl’s Guide to Friendship Troubles (American Girl Library)” Webpage has listings for Barbie dolls, books and games Applicant contends that because it added the exclusionary language “excluding dolls relating to characters from children’s books” to its product description, the examining attorney’s evidence is not pertinent. Specifically, applicant discounts the evidence submitted by the examining attorney which was introduced prior to applicant’s amendment to its description of goods, because it does not establish a relationship between Serial No. 77922983 13 “dolls, excluding dolls relating to characters from children’s books; doll clothing; and doll accessories” and children’s books.12 A review of the evidence indicates that it in fact supports the relatedness of children’s books to dolls of different types, including dolls that do not relate to characters in associated children’s books (i.e., books that are marketed in the same commercial setting with the dolls). For example, the webpages for the Madeline doll also advertise the “Me” doll which does not appear to be featured in the books shown; the pages for the American Girl dolls feature a book entitled “A Smart Girl’s Guide to Friendship Troubles” that does not correspond to a particular American Girl doll.13 With respect to the third- party registrations cited by the examining attorney, several have no direct association with book character names and therefore contradict applicant’s argument. Thus, in addition to supporting the common practice of marketing dolls and books under the same marks, the evidence also shows that dolls are marketed in connection with books that 12 Applicant’s Reply Brief p. 6. 13 The evidence also supports the relatedness of doll clothing and doll accessories, to children’s books. For example, the webpages for the Madeline doll advertise doll clothing and accessories (trunk, outfits, storage and travel case); the Only Hearts Club site shows several different types of dolls offered for sale together with outfits and accessories, and books. Serial No. 77922983 14 do not necessarily feature the doll characters, i.e., the dolls are not the subject of the accompanying books. Applicant argues that consumers would not expect its dolls to originate from the same source as registrant’s books because applicant’s dolls are made from the likeness of female characters featured in applicant’s advertising materials for footwear rather than from book characters.14 There is nothing in the record to show that applicant’s dolls are made in the likeness of female characters featured in applicant’s footwear advertising. Moreover, the description of goods in applicant’s application is limited to dolls, excluding dolls relating to characters from children’s books. Therefore, whether applicant’s dolls are based on a character used to sell its shoes does not factor into our determination of the similarity of the goods. An important fact that can be gleaned from the foregoing is that applicant’s doll is based on a character. Similarly, several of the dolls and books featured in the examining attorney’s internet evidence are based on characters. Thus, a common theme is that applicant’s dolls are based on a character and the record shows that 14 Applicant’s Reply Brief p. 5. Serial No. 77922983 15 characters are commonly embodied in dolls that are marketed with books that may or may not include the characters. As shown by the third-party registrations and internet evidence submitted by the examining attorney, it is a common practice for the same entity to sell dolls and children’s books under the same mark. Thus, consumers would expect such goods to emanate from a single source. There is nothing in the record that indicates consumers would be able to differentiate applicant’s dolls from registrant’s books by disassociating the common practice of marketing and selling dolls and books under the same marks. Where, as here, the goods in the application and cited registration are broadly described and there are no limitations in the identification of goods as to their channels of trade or classes of purchasers, it is presumed that the scope of the application and registration encompass all goods of the nature and type described, that the goods move in all channels of trade that would be normal for such goods, and that the goods would be purchased by all potential customers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), citing The Kalart Co., Inc. v. The Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958). See also, In re La Peregrina Ltd., 86 USPQ2d 1645, 1646 (TTAB 2008). Serial No. 77922983 16 In view of the unrestricted channels of trade in the subject application and the cited registration and the presumption that the respective goods move in all channels of trade that would be normal for such goods and would be purchased by all potential customers, we turn to the evidence of trade channels and classes of customers for the parties’ products and services. Applicant and the examining attorney agree that the dolls and children’s books are directed at children who are the ultimate users of the products.15 Applicant’s products are sold through its own stores, the internet and upscale department and specialty stores.16 Applicant admits that “. . . both types of goods may be found in a same commercial setting, such as bookstores.”17 In view of the fact that dolls and children’s books are directed at children and sold through the same channels of trade, the purchaser’s of these goods will be the same, i.e., people who purchase products for children. 15 Applicant’s Brief pp. 9, 10, 15, 16; Reply Brief p. 2; Examining Attorney’s Brief (unnumbered) p. 8. 16 Applicant’s Brief pp. 16-17; Applicant’s Exhibits 9 and 10 to March 30, 2011 Request for Reconsideration. 17 Applicant’s Request for Reconsideration p.7 filed March 30, 2011. Serial No. 77922983 17 In fact, the evidence shows that the type of products sold by applicant and registrant are not just sold in the same channels, but are actually sold in connection with each other. Given this relationship between the parties’ goods, there is ample basis to assume the parties’ marks will be seen by the same class(es) of purchasers on the same purchasing trip. Applicant’s argument that consumers are sophisticated, “quite selective” and “pay particular attention to detail,” is without any evidentiary support and does not factor into our decision.18 Suffice it to say that there is nothing that demonstrates that consumers are sophisticated or that the purchase of dolls and children’s books are made with such care that consumers will differentiate between identical marks for such related goods. After the examining attorney provided evidence of the relationship between children’s books and dolls, applicant amended its application to “dolls, excluding dolls relating to characters from children’s books . . . .” However, such restriction does not address the commercial significance of the products and does not serve to avoid likelihood of 18 Applicant’s Brief pp 13-14. Serial No. 77922983 18 confusion in this case. See Eurostar Inc. v. “Euro-Star” Reitmoden GmbH & Co. KG, 34 USPQ2d 1266, 1270 (TTAB 1994). In fact, applicant’s amendment acknowledges the relationship between dolls and children’s books. While applicant argues that the exclusion of “dolls relating to children’s books” sufficiently distinguishes applicant’s goods from registrant’s goods,19 it fails to explain how its amendment functions to sever the proven relationship between these products. Whether dolls are based on book characters, or books are later written about characters embodied in dolls, a relationship exists between these types of products as shown by the marketplace evidence submitted by the examining attorney. The relatedness of children’s books and toys has long been recognized. See Dan Robbins & Associates, Inc. v. Questor Corp., 599 F.2d 1009, 202 USPQ 100, 104 (CCPA 1979) (opposer’s games and toys, and applicant’s children's books, all have a common marketing environment, being sold generally in toy stores and toy departments of retail stores to the same purchasers). As observed by the Board in that case: The record is also clear that toys and children’s books are generally sold in the same toy stores or to toy departments of retail establishments and often in close proximity to one another. Thus, it is reasonable to assume that purchasers of these, whether 19 Applicant’s Reply Brief p. 5. Serial No. 77922983 19 parents, or children, would be the same and that both types of products may be purchased at the same time as gifts for offspring or friends. Thus, these products could be encountered in a marketing environment that could give rise to confusion as to source or sponsorship if they were to be marketed under the same or similar marks. Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 366 (TTAB 1978) aff’d 599 F.2d 1009, 202 USPQ 100 (CCPA 1979). Applicant’s amendment has no impact on the marketplace perception of the relatedness of dolls and characters found in books. Consumers seeing registrant’s books or applicant’s dolls being sold under the TWINKLE TOES mark will have no reason to think that the products originate from two different sources, nor will they be privy to the exclusion in applicant’s description of goods. Rather, in view of the relatedness of these products which are both intended for children, consumers will likely believe they come from the same source, especially when sold under the identical mark. Thus, applicant’s amendment does not vitiate the relatedness of dolls and children’s books. In light of the foregoing, we find that applicant’s and cited registrant’s products are related, travel in the same channels of trade, and are provided to the same class(es) of purchasers and users. Given the relationship between dolls and books, consumers, upon seeing the same Serial No. 77922983 20 marks on applicant’s dolls and registrant’s children’s books, would likely believe that the goods emanated from the same source. C. The Number and Nature of Similar Marks in Use on Similar Goods. To support its position that TWINKLE TOES is a weak mark that is entitled to a narrow scope of protection, applicant submits evidence of the use of the term TWINKLE TOES in a handful of book titles and a single registration, namely, Registration No. 3231078, for candy and cookies.20 Specifically, applicant submits the results of an internet search on the amazon.com website that identified seven children’s books having the term TWINKLE TOES in their titles.21 While third-party uses of the TWINKLE TOES mark would be evidence of the weakness of the mark and is a separate du Pont factor to be considered in determining likelihood of confusion, 177 USPQ at 567, applicant’s evidence fails to show use of the cited mark by third parties. First, applicant’s book title evidence does not show use of TWINKLE TOES as a trademark. It is well established 20 Applicant’s Exhibit 6 to March 30, 2011 Request for Reconsideration. 21 Applicant’s Brief p. 7 and Exhibit 1 to March 30, 2011 Request for Reconsideration. The eighth book identified in the search bears the title “Twinkle Twinkle Little Toes.” Serial No. 77922983 21 that the law prohibits proprietary trademark rights for single book titles. See Herbko International, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1379-80 (Fed. Cir. 2002). Additionally, this evidence of purported third party use is of limited probative value because there is nothing to show that the public is aware of the books or how many, if any, of the books have been sold. See Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1284 n. 5 (TTAB 1998); Helene Curtis, Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1622 (TTAB 1989). Rather, the book titles are evidence for what they show on their face: that seven books have “Twinkle Toes” in their titles. The lone registration for TWINKLE TOES cited by applicant does not render TWINKLE TOES to be such a weak mark as to preclude a finding of likelihood of confusion, particularly where there is no probative evidence that goods in the registration are more closely related to the children’s books covered in the cited registration than applicant’s goods.22 See Helene Curtis, 13 USPQ2d at 1622 (defendant’s reliance on four prior registrations is of no consequence). Moreover, absent evidence of actual use (which has not been provided), third-party registrations 22 Applicant’s Exhibit 6 to March 30, 2011 Request for Reconsideration. Serial No. 77922983 22 have little probative value because they are not evidence that the marks are in use commercially or that the public has become familiar with them. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973)(the purchasing public is not aware of registrations reposing in the Patent [and Trademark] Office); and In re Hub Distributing, Inc., 218 USPQ 284, 285-86 (TTAB 1983). In support of the registrability of its mark, applicant refers to separate pages from the Barnes & Noble website offering candy and books for sale,23 and argues that the candy and cookies in Registration No. 3231078 are at least as closely related to registrant’s books as applicant’s products. According to applicant, because the mark is concurrently registered for the foregoing products which are sold in the same store, this fact demonstrates that merely being sold in the same store is not indicative of the relatedness of dolls and books. Applicant’s argument misses the point. The examining attorney’s evidence of the relatedness of dolls and books not only shows them offered in the same store (i.e., website), it shows them advertised and offered for sale on the same webpage. 23 Applicant’s Exhibits 7, 8 to March 30, 2011 Request for Reconsideration. Serial No. 77922983 23 Thus, based on the record before us, the cited TWINKLE TOES mark is not such a weak mark for children’s books that its scope of protection fails to reach applicant’s goods. Even if TWINKLE TOES is considered to be a weak mark, “likelihood of confusion ‘is to be avoided as much between ‘weak’ marks as between ‘strong’ marks . . . .” King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974). D. Balancing the factors. The du Pont factors require us to consider the thirteen factors for which evidence has been made of record in likelihood of confusion cases. Our consideration of the pertinent factors leads us to conclude that the marks are identical and there is more than a viable relationship between applicant’s “dolls, excluding dolls relating to characters from children’s books,” and the children’s books in the cited registration. Accordingly, we find that applicant’s TWINKLE TOES mark is likely to cause confusion with the TWINKLE TOES mark in cited Registration No. 3261904. Decision: The refusal to register is affirmed.