Togas House of Textiles LLC

Trademark Trial and Appeal BoardAug 17, 2021

88977677 (T.T.A.B. Aug. 17, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: August 17, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Togas House of Textiles LLC _____ Serial No. 88977677 _____ Maria Eliseeva of Patentbar International PC, for Togas House of Textiles LLC. Ellen J. G. Perkins, Trademark Examining Attorney, Law Office 110, Chris Pedersen, Managing Attorney. _____ Before Kuhlke, Taylor and Hudis, Administrative Trademark Judges. Opinion by Kuhlke, Administrative Trademark Judge: Togas House of Textiles LLC (“Applicant”) seeks registration on the Principal Register for the mark for, among other things, “Pillows; mattresses; furniture,” in International Class 20 and “Retail and online store services featuring home goods,” in International Class 35.1 1 Application Serial No. 88977677 was filed on July 18, 2019 based on an allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). The Application contains the following description of the mark: “Color is not Serial No. 88977677 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in connection with the identified goods and services, so resembles the registered mark (“TOGA (stylized)”) for, among other things, “Retail store services and wholesale store services for woven fabrics and beddings; retail store services and wholesale store services for clothing; retail store services and wholesale store services for diapers; retail store services and wholesale store services for footwear, other than special footwear for sports; retail store services and wholesale store services for bags and pouches; retail store services and wholesale store services for personal articles,” in International Class 352 as to be likely to cause confusion. When the Section 2(d) refusal was made final, Applicant appealed and requested reconsideration. On December 14, 2020, the Examining Attorney denied the request. The appeal thereafter resumed and briefs have been filed.3 We affirm the refusal to register as to the goods and services in International Classes 20 and 35.4 claimed as a feature of the mark. The mark consists of the words TOGAS above the words HOUSE OF TEXTILES inside a rectangle with stylized stitches around the perimeter of the rectangle.” The application includes goods in International Classes 3, 4, 20, 21 and 27, which are not subject to the refusal. In addition, the application was divided from Application Serial No. 88522403, which covers goods in International Classes 24 and 25. The appeal in Application Serial No. 88522403 has been suspended pending the final determination of this appeal. 2 Registration No. 4966903 was issued on May 31, 2016. 3 The Examining Attorney’s Final Refusal included a requirement for a disclaimer of the word TEXTILES. In the Request for Reconsideration, Applicant provided the disclaimer and this requirement has been satisfied. The disclaimer will be entered in the following format: “No claim is made to the exclusive right to use ‘TEXTILES’ apart from the mark as shown.” 4 Citations to TTABVUE throughout the decision are to the Board’s public online database that contains the appeal file, available on the USPTO website, www.USPTO.gov. The first Serial No. 88977677 - 3 - I. Likelihood of Confusion When the question is likelihood of confusion, we analyze the facts as they relate to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). 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, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“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.”’) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). number represents the docket number in the TTABVUE electronic case file and the second represents the page number(s). Citations to the examination record refer to the USPTO’s online Trademark Status and Document Retrieval system (TSDR). Serial No. 88977677 - 4 - A. Similarity/Dissimilarity of the Marks We compare the marks in their entireties as to “appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (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.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). In evaluating the similarities between marks, the emphasis must be on the recollection of the average purchaser – here, a buyer of bedding, furniture, home goods, clothing, diapers, bags, pouches or personal articles, which we find to be a member of the general public – who normally retains a general, rather than specific, impression of trademarks. In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed. Cir. 1992)). Our analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on a comparison of the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 Serial No. 88977677 - 5 - (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.”). However, “in 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.” In re Nat’l Data, 224 USPQ at 751. Applicant points to the different elements in its mark to support its position that it is sufficiently dissimilar from Registrant’s mark : Applicant’s combination mark has a strikingly different design. In addition to a stylized word portion, the design includes a large rectangular swatch with distinctive stiches along the perimeter of the rectangular swatch. The stitches are indicative of sewing on a swatch and convey an impression of swatches being stitched together. … That unique design of the applied-for mark with a word portion including 4 words renders Applicant’s mark highly dissimilar in appearance from Registrant’s mark. An average purchaser will highly likely retain an impression of the distinctive features of the design of Applicant’s mark. April 20, 2020 Response, TSDR at 2, 5. Applicant argues that the marks have different meanings. Specifically, Applicant argues that: HOUSE, as a semantic center of the four-word phrase, [and] further being illustrated by the design element reflecting the general nature of this type of the HOUSE as a line of business (textiles). Contrary to the meaning and Serial No. 88977677 - 6 - semantic[s] of Applicant’s mark TOGAS HOUSE OF TEXTILES, the cited mark TOGA is a single word with a very narrow meaning of a very specific obsolete ancient Roman garment having no semantic center and/or any additional words further describing, illustrating or expanding its meaning. Therefore, the respective marks mean completely different things and do not have any meaning in common. App. Brief, 8 TTABVUE 9-10. With regard to just the words TOGAS and TOGA Applicant asserts: Second, the word “TOGA” in the cited registration means an ancient Roman piece of clothing. It was worn by the privileged class of patricians in ancient Rome and it became obsolete about 1500 year ago. Response to Office Action of 04/20/2020, page 14. The word “TOGAS” in Applicant’s four-word mark has a different meaning completely unrelated to a suggested plural form of the word for an obsolete ancient piece of clothing. The word TOGAS is a Greek name of the founder of TOGAS HOUSE OF TEXTILES who founded the company in Greece in 1926, almost 100 years ago, see Request for Reconsideration, page 3 and Exhibit 1. It is common knowledge that it is typical for Greek names to end with an “as” (as in Maria Callas), or “is” (as in Mikis Theodorakis), or “os” (as in Stavros Papadopoulos). That “-as” ending in TOGAS HOUSE OF TEXTILES has nothing to do with a plural form of any noun. See Request for Reconsideration, page 3. “TOGA” is not even a Greek, but a Latin word. Applicant hereby submits a screen shot from the Latin dictionary which provides that the proper plural of nominative “toga” is “togae”, and not “togas”, of which the Board may take judicial notice to show the correct plural form. Exhibit B, attached.5 8 TTABVUE 10-11. 5 We grant Applicant’s request for judicial notice of the dictionary excerpt. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format or regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 88977677 - 7 - Finally, Applicant argues the “prominent design” in Applicant’s marks supports the dissimilarity of the marks: The overall design portion of Applicant’s mark is (1) very prominent - it is not a minor design element by any stretch of imagination, because it is much larger than the four words of the word portion of the mark; (2) elaborate, as it depicts a large black square patch with thick white thread stitched around the entire perimeter of that patch; [and] (3) catchy, as such prominent elaborate design of a large black patch with stitches around it is very likely quickly to catch an eye and hold the attention of a consumer before the consumer even focuses on the wording. The image of a contrasting patch of fabric stitched along the edges with a thick white thread conveys a contemporary and modern impression (because of the black and white contrast and the white font on the black patch) in combination with a more traditional impression of a patch with stitches as one’s grandma would do. The overall Applicant’s word + design composite mark created a notion of a Mediterranean setting referencing the Greek origin on the mark. 8 TTABVUE 14. The Examining Attorney acknowledges these points of difference between Applicant’s mark and Registrant’s mark, but makes a determination of similarity based on an analysis that TOGAS is the dominant portion of Applicant’s mark in that it is displayed in a larger font, is the first word and is set above and separate from the other wording. Thus, focusing on the general impression, consumers are likely to recall the TOGAS portion of Applicant’s mark. The Examining Attorney also finds the design element to be not prominent as it essentially serves as background for the wording in Applicant’s mark, and accords greater weight to the word portion because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods. In re Aquitaine Wine USA, LLC, Serial No. 88977677 - 8 - 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). During examination, the Examining Attorney noted that Applicant’s mark is in plural form but observed that: [A]n applied-for mark that is the singular or plural form of a registered mark is essentially identical in sound, appearance, meaning, and commercial impression, and thus the marks are confusingly similar. Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015) (holding “it is obvious that the virtually identical marks [the singular and plural of SWISS GRILL] are confusingly similar”); Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (finding the singular and plural forms of SHAPE to be essentially the same mark) (citing Wilson v. Delaunay, 245 F.2d 877, 878, 114 USPQ 339, 341 (C.C.P.A. 1957) (finding no material difference between the singular and plural forms of ZOMBIE such that the marks were considered the same mark). October 15, 2019 Office Action, TSDR 1. As explained above, we bear in mind that the “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, 685 (CCPA 1977)). While a side-by-side comparison of the marks reveals the differences between them, such a comparison is not the proper way of determining likelihood of confusion since that is not the way customers will view the marks in the marketplace. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (“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 Serial No. 88977677 - 9 - would be likely to assume a connection between the parties.”). Rather, it is the general overall commercial impression created in the mind of the consumer whose memory of a trademark is imperfect. To reiterate, “the emphasis is on the recollection of the average purchaser who normally retains a general rather than a specific impression of trademarks.” See In re Solar Energy Corp., 217 USPQ 743,745 (TTAB 1983) and cases cited therein; see also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). We agree that the word TOGAS in Applicant’s mark is the dominant element and most likely to be recalled by consumers. The design element does not catch the eye in a way to take precedence over the word TOGAS and the additional wording HOUSE OF TEXTILES simply provides the consumer with information about the goods, i.e., that they consist of textiles. Applicant relies on decisions where the addition of other wording serves to distinguish the marks. However, in all of the decisions, the additional wording created different connotations and commercial impressions. Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F .3d 1373, 47 USPQ2d 1459, 1460 (Fed. Cir. 1998) involved the marks CRYSTAL CREEK and CRISTAL. The Court affirmed the Board’s decision finding that the word marks “CRISTAL” and “CRYSTAL CREEK” evoked “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 Serial No. 88977677 - 10 - civilization) creek or stream.’” Id. at 1460 (citation omitted).6 The marks in In re Hearst Corp., 982 F.2d 493, 25 USPQ2d 1238 (Fed. Cir. 1992) were VARGAS for calendars and VARGA GIRL for calendars and the Court determined the “girl” portion had a significant contribution to the mark as a whole and by diminishing that element “the Board inappropriately changed the mark.” Id. at 1239. With regard to the impact of the design element in Applicant’s mark, it is very different from the cases relied on by Applicant. In In re White Rock Distilleries, 92 USPQ2d 1282 (TTAB 2009) the Board found the prominent design element and the first word TERZA that dominated over the word VOLTA in the Registered mark to be sufficient to distinguish it from the word mark VOLTA. In Parfums de Coeur Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007) the design element was highly distinctive with a strong visual impact revealing a torso that acts as a face and a cape with initials reminiscent of a super hero costume . These elements sufficiently distinguished it from the word marks BOD and BOD MAN. Similarly, the design elements in Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 USPQ2d 1477 6 Similarly, in the unpublished decision Consolidated Artists BV v. Camille Beckman Corp., Opp. No. 91188863 (TTAB February 16, 2012), the Board found the mark MANGO BEACH read as a unitary phrase which had the connotation and commercial impression of a place as distinguished from MANGO which simply evoked the fruit. Serial No. 88977677 - 11 - (TTAB 1987) and In re C. Preme Limited, LLC, Serial No. 85316370 (TAB June 28, 2013) are much more prominent and distinctive than the design in Applicant’s mark. Turning to comparing the common element, Applicant argues TOGAS and TOGA have different connotations, whereas the Examining Attorney asserts TOGAS would be perceived as the plural of TOGA. While the Latin plural for TOGA is TOGAE, the English plural for TOGA is TOGAS.7 In addition, although it is possible some consumers will view TOGAS as a Greek surname, most consumers would view it simply as the plural of TOGA. In terms of appearance, sound, connotation, and commercial impression, we find the similarity in the marks — considered in their entireties — outweighs their dissimilarities. In view thereof, the similarity of these marks weighs in favor of a finding of likelihood of confusion. B. Relatedness of the Goods and Services, Trade Channels, Classes of Consumers and Conditions of Sale When considering the goods and services, trade channels, classes of consumers and conditions of sale, we must make our determinations based on the goods and services as they are identified in the application and cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone 7 We take judicial notice of the word TOGA from Dictionary.com based on THE RANDOM HOUSE UNABRIDGED DICTIONARY (2021): toga noun, plural to·gas, to·gae. Serial No. 88977677 - 12 - Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Computer Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The issue is not whether the goods and services will be confused with each other, but rather whether the public will be confused as to their source. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.”). It is sufficient that the goods and services of the applicant and the registrant are related in some manner or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 14711, 1476 (Fed. Cir. 2000). The application and registration themselves may provide evidence of the relationship between the goods and services. Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002). As stated, Applicant seeks registration for “Pillows; mattresses; furniture” and “Retail and online store services featuring home goods,” and Registrant’s most pertinent services are identified as “Retail store services and wholesale store services for woven fabrics and beddings.” Serial No. 88977677 - 13 - Applicant’s services, “Retail and online store services featuring home goods” are legally identical to Registrant’s “Retail store services and wholesale store services for woven fabrics and beddings” because Applicant’s “Retail and online store services” encompass Registrant’s “retail store services” and the feature of Applicant’s services “home goods” encompasses Registrant’s more specific “beddings.” With regard to Applicant’s goods, it is well recognized that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 1307 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (“[W]e have held that confusion is likely where one party engages in retail services that sell goods of the type produced by the other party . . . .”); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S (stylized) for retail grocery and general merchandise store services and BIGGS and design for furniture likely to cause confusion). When the goods and services in question are well known or otherwise generally recognized as having a common source of origin, the burden of establishing relatedness is easier to satisfy. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014). For example, relatedness would generally be recognized when the services clearly include or encompass the goods in the identification. When the relatedness of the goods and services is not evident, well known, or generally recognized, “something more” than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 113 USPQ2d at 1087. Here, the retail store services Serial No. 88977677 - 14 - featuring bedding encompasses Applicant’s goods, in particular, pillows, and relatedness would generally be recognized by consumers. Indeed, Applicant’s own application supports a relationship between the goods, pillows, and the retail services. In addition, the Examining Attorney submitted excerpts from third-party websites showing Applicant’s and Registrant’s goods and services offered under the same mark. A few examples are set forth below: Hildreth’s Home Goods retail store website showing pillows with other bedding for sale under the mark Hildreth’s;8 Bloomingdales website home section showing pillows and other bedding for sale under the Bloomindales mark;9 and L.L.BEAN website home goods section showing pillows listed and other bedding goods under the L.L.BEAN trademark.10 She also submitted a few examples of use-based third-party registrations for Applicant’s and Registrant’s goods and services under one mark: Registration No. 5792525 for the mark REBECCA ATWOOD for, inter alia, pillows and retail store services featuring bed blankets, bed spreads, duvet covers, etc.;11 and Registration No. 5787261 for the mark HEYDREAMY for, inter alia, bedding goods and online retail store services featuring bedding goods, including pillows.12 8 May 14, 2020 Office Action, TSDR at 28 (www.hildreths.com). 9 May 14, 2020 Office Action, TSDR at 25 (www.bloomingdales.com). 10 May 14, 2020, TSDR at 15 (www.llbean.com). 11 October 15, 2019 Office Action, TSDR at 14-15. 12 October 15, 2019 Office Action, TSDR at 17. Serial No. 88977677 - 15 - The third-party registrations are probative to the extent that they serve to suggest that the listed goods and services are of a type that may emanate from the same source. 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), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988). The examples of third-party use show the market context in which consumers are exposed to the same mark being used for the relevant goods and services, indicating single source. With regard to Applicant’s and Registrant’s services, because the services are legally identical, and because there are no limitations as to channels of trade or classes of purchasers, we must presume that Applicant’s and Registrant’s services will be offered in the same channels of trade and will be consumed by the same general classes of purchasers. In re Viterra 101 USPQ2d at 1908 (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). Further, because there are also no limitations as to channels of trade or classes of purchasers for Applicant’s goods, we presume that Applicant’s goods and Registrant’s services are offered in the ordinary channels of trade and offered to all the usual classes of purchasers for these goods and services. Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into the registrant’s description of goods.”). The Serial No. 88977677 - 16 - third-party websites listed above, show the ordinary channels of trade for the goods and services overlap. Applicant argues that the cases cited by the Examining Attorney do not support the position that its goods and Registrant’s services may be related because in those cases the marks were identical or nearly identical. However, the analysis is not dependent on the level of similarity of the mark but rather, as noted above, whether the goods and services in question are generally recognized as having a common source of origin. Applicant also challenges the evidence arguing that the third-party registrations are not probative because only one includes goods in International Class 20, pillows, and none include mattresses or furniture. We agree the number of third-party registrations is small and, as such, their overall probative value is more limited. However, they do serve to corroborate the third-party use evidence and that pillows would be generally known to be sold in stores selling bedding. Applicant is correct that third-party use evidence may be of limited probative value where the examples are from sources that sell a broad range of varied and unrelated goods. However, we find some of the examples more directly targeted to bedding and home goods, either by the store itself (Hildreth’s), or the specialized section of the store (Bloomingdales, L.L.Bean) to be probative. Finally, it is sufficient for a finding of likelihood of confusion if relatedness is established for any item encompassed by the identification of goods or services within a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Serial No. 88977677 - 17 - 648 F.2d 1335, 209 USPQ 986 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014). Thus, it is sufficient to find relatedness based on Applicant’s “pillows” only in International Class 20 and based on Registrant’s services featuring “bedding” only in International Class 35. Applicant submitted search results on the words “retail” and “pillows” from the USPTO’s database showing that “only 443 registrations exist in both sets (merely 0.48% of those listing “retail” only).” App. Brief, 8 TTABVUE 17. There are many different types of retail services. Therefore, it is no surprise that a small portion of retail services generally are for retail stores that offer bedding goods, including pillows. Similarly, in regard to Applicant’s and Registrant’s services, Applicant submitted a search on “bedding” and “home goods” in International Class 35, noting that “only 43 registrations exist in both sets (merely 3% of those listing ‘bedding’ only)” and a search on “textiles” in International Class 35, noting “only 40 registrations exist in both sets (merely 2.3% of those listing ‘textiles’ only), and merely 11 registrations exist for the set of ‘home goods,’ ‘bedding’ and ‘textiles’.” Id. at 17-18. However, these numbers and comparisons do not account for the broad nature of the broad term “home goods” that incorporates the more narrow subset of goods described as “bedding.” With regard to the conditions of sale and whether the goods and services are subject to more careful purchasing decisions, Applicant points to examples of actual use by Applicant and Registrant, showing price points of, for example, $610 for Registrant’s shorts and $200-$800 for Applicant’s pillows, and argues that “[c]ommon Serial No. 88977677 - 18 - sense suggests that consumers purchasing luxury clothes and home goods of that caliber and that price range are not ordinary consumers shopping for a t-shirt at Walmart, but a sophisticated consuming group.” App. Brief, 8 TTABVUE 20. Applicant’s evidence about Registrant’s and Applicant’s actual use cannot be used to restrict the scope of the broad registration. Stone Lion, 110 USPQ2d at 1162 (Board must “give full sweep” to an identification of goods regardless of registrant’s actual business); In re Bercut-Vanderboort & Co., 229 USPQ 763, 764-765 (TTAB 1986) (“[T]he question of likelihood of confusion must be determined by an analysis of the marks as applied to the goods [and services] identified in the application vis-à-vis the goods [and services] recited in the registration, rather than what extrinsic evidence shows those goods to be.”). We must consider the goods and services as identified and base our determination on the least sophisticated consumer of the identified goods and services. Stone Lion, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our decision to be based on the least sophisticated potential purchasers.”)). Because the respective identifications of goods and services are unrestricted, we must assume that these goods and services are offered to ordinary purchasers who exercise no more than ordinary care in their purchasing decisions. See In re Fabfitfun, Inc., 127 USPQ2d 1670, 1673 (TTAB 2018) (no restriction of price). Here, the consumers for Applicant’s and Registrant’s goods and services comprise the general public. The relevant goods and services would not involve a particular or raised level of care in the purchasing Serial No. 88977677 - 19 - decision, at least not one that would actively weigh against a finding of a likelihood of confusion. We find the relationship between the goods and services, their channels of trade and conditions of sale also favor a finding of a likelihood of confusion. C. Actual Confusion Applicant simply states there has been no actual confusion and lists two Google search results as “evidence of [no] actual confusion.” See, e.g., App. Brief, 8 TTABVUE 6. The search results derive from the searches for “togas textiles” and “toga archives.” Drawing from these results, Applicant asserts “[n]one of the third party online stores checked by Applicant that carried Registrant’s goods had any of Applicant’s goods. Moreover, a Google search for any occurrence of the search terms ‘togas textile’ and ‘toga archives’ in the same store, publication, industry news or anywhere did not produce any hits.” April 20, 2020 Response, TSDR at 12. In the Request for Reconsideration, Applicant included Google search results for “togas house of textiles” and “toga” showing no results. November 16, 2020 Request for Reconsideration, TSDR at 12. Applicant notes that :[i]t is quite telling that there wasn’t a single hit anywhere in the entire gigantic Google shopping search database.” Id. It is unclear how these searches support a finding of no actual confusion. We also note the application is based on intent to use and it is not clear from the record whether and to what extent there have been meaningful opportunities for confusion to occur for the identified goods and services. In re Kangaroos U.S.A., 223 USPQ 1025, Serial No. 88977677 - 20 - 1026‒27 (TTAB 1984). Applicant’s “uncorroborated statements of no known instances of actual confusion are of little evidentiary value.” In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). Moreover, in the context of an ex parte appeal, there is no opportunity to hear from the registrants about whether they are aware of any reported instances of confusion. In re Opus One, Inc., 60 USPQ2d 1812, 1817 (TTAB 2001) (“The fact that an applicant in an ex parte case is unaware of any instances of actual confusion is generally entitled to little probative weight in the likelihood of confusion analysis, inasmuch as the Board in such cases generally has no way to know whether the registrant likewise is unaware of any instances of actual confusion, nor is it usually possible to determine that there has been any significant opportunity for actual confusion to have occurred.”) (citations omitted). In any event, the test is likelihood of confusion, not actual confusion, and, as often stated, it is unnecessary to show actual confusion in establishing likelihood of confusion.” In re Big Pig Inc., 81 USPQ2d 1436, 1439-40 (TTAB 2006); see also In re Detroit Athletic Co., 903 F.3d 1297, 1309, 128 USPQ2d 1047, 1053 (Fed. Cir. 2018) (“[T]he relevant test is likelihood of confusion, not actual confusion.”) (emphasis in original); In re i.am.symbolic, llc, 123 USPQ2d at 1747 (“‘[A] showing of actual confusion is not necessary to establish a likelihood of confusion.’”) (quoting Herbko, 64 USPQ2d at 1380)). Serial No. 88977677 - 21 - II. Conclusion In sum, we hold that in view of the similar marks, related goods and services, and overlap in trade channels and classes of consumers, confusion is likely between Applicant’s mark and Registrants’ mark TOGA (stylized). Decision: The refusal to register Applicant’s mark is affirmed under Trademark Act Section 2(d) as to the goods and services in International Classes 20 and 35. The application will proceed for the goods in International Classes 3, 4, 21, and 27.