U.S. Vision, Inc.

Trademark Trial and Appeal Board

Nov 8, 2011

No. 77422366 (T.T.A.B. Nov. 8, 2011)

Mailed:
November 8, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re U. S. Vision, Inc.
________

Serial No. 77422366
_______

Sherry H. Flax of Saul Ewing LLP.

Linda A. Powell, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______

Before Kuhlke, Bergsman and Kuczma,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:

U.S. Vision, Inc. (“applicant”) filed an intent-to-use
application for the mark SUNSATIONS and Design shown below:

for the following goods in Class 9, as amended:
Eyewear; Eyewear accessories, namely,
straps, neck cords and head straps
which restrain eyewear from movement on
a wearer, and eyewear cases, sold only
in optical specialty stores.

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 77422366
2
Registration of applicant’s mark was refused under
§ 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d),
because of a likelihood of confusion with the marks in U.S.
Registration Nos. 1967569 and 1992246 on the ground that
applicant’s mark so resembles the registered marks that it
is likely that a potential consumer would be confused or
mistaken or deceived as to the source of the goods and
services of applicant and registrant. Applicant appeals
from the final refusal under § 2(d).1
Registration No. 19675692 is for the mark SUNSATIONS in
a typed drawing format3 for:
Retail store services featuring
sunglasses, optical cloths and cords,
T-shirts, sweatshirts, and shorts in
Class 42.

Registration No. 1992246,4 is owned by the same owner
as Registration No. 1967569, covers the same services, and

1 Due to confusion during the prosecution of the application,
applicant filed its notice of appeal on January 12, 2010 together
with its first request for reconsideration. Upon the denial of
that request, applicant filed its appeal brief. Subsequently,
jurisdiction for the application was remanded to the examining
attorney. The Board’s order of January 19, 2011 resumed the
appeal and granted permission for applicant to submit a
supplemental appeal brief. Applicant timely filed a supplemental
brief and the examining attorney filed a responding brief.
2 Issued April 16, 1996; renewed July 13, 2006.
3 In 2003, Trademark Rule 2.52(a) was amended to refer to “typed”
drawings as “standard character” drawings. See Trademark Rule
2.52(a); 37 C.F.R. § 2.52(a); TMEP § 807.03(i).
4 Issued August 13, 1996; renewed October 14, 2006.
Serial No. 77422366
3
incorporates the same word, in the stylized mark shown
below:

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.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, (CCPA 1976). Based on the evidence
submitted by applicant, we also focus in this case on the
sixth du Pont factor, the number and nature of similar
marks in use on similar goods.
Serial No. 77422366
4

A. The Similarity or Dissimilarity and Nature of the
Goods and Services, Channels of Trade and Classes of
Consumers.

We first consider the du Pont factor regarding the
similarity or dissimilarity and nature of the goods and
services as described in the application and cited
registrations. The services in the cited registrations are
“retail store services featuring sunglasses, optical cloths
and cords, T-shirts, sweatshirts and shorts.” Applicant
seeks to register its mark for, inter alia, “eyewear,
eyewear accessories. . . sold only in optical specialty
stores.” It is settled that likelihood of confusion may
result from the use by different parties of the same or
similar marks in connection with goods, on the one hand,
and services which deal with or are related to those goods,
on the other. See In re Mucky Duck Mustard Co. Inc., 6
USPQ2d 1467 (TTAB 1988); and Steelcase Inc. v. Steelcare
Inc., 219 USPQ 433 (TTAB 1983).
Attempting to distinguish registrant’s services from
applicant’s eyewear products, applicant submitted copies of
pages that were allegedly obtained from registrant’s
website.5 Applicant argues that the web pages show that all

5 See copies of undated pages from what applicant represents to
be registrant’s website submitted with June 22, 2009 response to
Serial No. 77422366
5
of registrant’s retail stores are located at beach resorts
and that applicant’s products are not sold at beach resorts
but in optical stores.6 Even assuming that all of the cited
registrant’s stores are actually located at beach resorts,
this fact plays no role in our determination. We must
consider applicant’s goods and the cited registrant’s
services as they are identified in the application and
respective registrations, and we cannot read limitations
into those identifications or consider extrinsic evidence
relating to a registrant’s actual goods or services,
customers or channels of trade. See Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002); Octocom Systems Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), citing
Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119
USPQ 139 (CCPA 1958). See also, Paula Payne Products Co.
v. Johnson Publishing Co. Inc., 473 F.2d 901, 177 USPQ 76,
77 (CCPA 1973)(“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the

office action. These pages also do not include the URL address
that identifies the source of the web pages. While we have
treated these pages as originating from registrant’s website, as
explained in TBMP § 1208.03, it is preferable for them to have
included the URL address and the date they were downloaded.
6 See applicant’s May 3, 2010 appeal brief, p. 3; and its March
21, 2011 supplemental brief, pp. 2-3.
Serial No. 77422366
6
respective descriptions of goods [or services]”). Notably,
the cited registrations recite “retail store services”
without limiting such services to a specific type of retail
store or locations at beach resorts.
If the identification in an application or a cited
registration describes goods or services broadly, and there
is no limitation as to the nature, type, channels of trade
or class of purchasers, it is presumed that the
registration encompasses all goods or services of the type
described, that they move in all channels of trade normal
for these goods and services, and that they are available
to all classes of purchasers for the described goods and
services. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB
1992). The cited registrations recite “retail store
services featuring sunglasses . . . T-shirts, sweatshirts
and shorts” without limiting the channels of trade or the
class(es) of purchasers. Therefore, we can assume that
registrant’s retail store services cover a wide range of
retail stores, including retail stores featuring optical
departments, which are closely related to “optical
specialty stores.”
Registrant’s stores sell “sunglasses” and applicant’s
“eyewear” is sold in optical stores. Neither the cited
registrations nor applicant’s application restrict sales to
Serial No. 77422366
7
a particular class(es) of purchasers. According to
dictionary definitions: “eyewear” is “any of various
devices, as spectacles, contact lenses, or goggles for
aiding the vision or protecting the eyes;” spectacles are
defined as “3. eyeglasses, especially with pieces passing
over or around the ears for holding them in place;” and,
“sunglasses” are “eyeglasses with colored or tinted lenses
that protect the eyes from the glare of sunlight.”7 In view
of the foregoing, sunglasses are a type of eyeglasses (or
spectacles) that fall squarely within the definition of
“eyewear.” 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.
As evidence of the relatedness of applicant’s goods
and registrant’s services, the examining attorney submitted
eighteen8 third party registrations reciting the same goods
for which applicant seeks registration, namely sunglasses,
and which also include retail store services for such
goods. Eight of these eighteen registrations were not
based on use of the marks in commerce and therefore cannot

7 The Random House Dictionary of the English Language
(Unabridged)(2nd ed. 1987) pp. 688, 1832, 1906. The Board can
take judicial notice of dictionary evidence. University of Notre
Dame du Lac v. J.C. Gourmet Food Imports Co., Inc., 213 USPQ 594,
596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
8 See July 2, 2010 office action.
Serial No. 77422366
8
be considered;9 and one of the registrations has since been
cancelled10 and thus has not been considered. With respect
to the remaining nine registrations,11 the examining
attorney contends, and we agree, that such registrations
have probative value to the extent they suggest that the
goods and services listed therein are a kind that may
emanate from a single source. See, In re Infinity
Broadcast Corp. of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB
2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
at 1470 n.6.
Applicant argues that some of these registrations
relate to house brands and are of no probative value.12
While the Board has, in some cases, devalued the citation
of third party registrations for marks in the nature of
house marks, designer marks and merchandising marks, i.e.,
marks that are registered for a broad range of products, it
has done so in the context of criticizing reliance on such
registrations for the purpose of showing relatedness of
goods. See, e.g., In re Mucky Duck, 6 USPQ2d at 1470 n.6.
Here, however, the third party registrations are being used

9 Namely, Registration Nos. 3312746, 3280100, 3389076, 3272601,
3409286, 3307585, 3427121, and 3418654.
10 Registration No. 2814994.
11 Registration Nos. 2624152; 2691578; 2969555; 3316273; 3364617;
3417722; 2974100; 3370250; and 3447097.
Serial No. 77422366
9
to show the relatedness of applicant’s goods to retail
store services that specifically mention the sale of the
goods listed in applicant’s application, namely eyewear and
clothing. Significantly, none of the nine use-based
registrations involve large “department store” or “house
brand” registrations that contain a long litany of
products. In view of the foregoing, we find these
registrations support the relatedness of applicant’s goods
and the services in the cited registrations.
In addition to third party registrations, the
Examining Attorney submitted copies of web pages for online
retail stores that offer eyewear bearing the same marks as
the online retail stores through which the goods are sold.13
This evidence supports the conclusion that consumers, upon
seeing the same marks on eyewear and optical stores selling
eyewear, (including sunglasses), would likely believe that
the goods and services emanated from the same source.
It is well settled that services and goods may be
sufficiently related such that use of a similar mark on
goods of the type offered by retail store services would be
likely to cause confusion where the evidence showed that

12 See applicant’s March 21, 2011 supplemental brief, p. 2.
13 See July 2, 2010 office action pp. 60-69 showing OAKLEY®,
TIFFANY & CO.®, RALPH LAUREN®, COACH®, and LOUIS VUITTON®, as
both online retail store marks (word or design marks or both),
and as marks used on eyewear.
Serial No. 77422366
10
the retail store services featured the same types of
products. See In re Thomas, 79 USPQ2d 1021, 1023 (TTAB
2006)(use of similar marks for jewelry and retail-jewelry
and mineral-store services); In re Peebles Inc., 23 USPQ2d
1795, 1796 (TTAB 1992)(nearly identical marks for coats and
retail outlets featuring camping and mountain climbing
equipment, including coats noting “there is no question
that store services and the goods which may be sold in that
store are related goods and services for the purpose of
determining likelihood of confusion”); In re United States
Shoe Corp., 8 USPQ2d 1938, 1939 (TTAB 1988)(use of nearly
identical marks for leather cowboy boots and for retail
western-, outdoor-, and leisure-clothing-store services
featuring boots was likely to cause confusion).
Applicant’s argument that there are “dozens of
identical marks that are separately registered and owned by
different registrants for sunglasses and retail services,”14
falls far short. Applicant points to only three pairs of
marks: CALIFORNIA SELECT, Registration No. 3516158, and
SELECT, Registration No. 3331032; SUNSMART, Registration
No. 3647539 and SMARTSUN, Registration No. 3187036; and
ELEMENT, Registration No. 3346567 and URBAN ELEMENT,
Registration No. 2957841. Unlike applicant’s and cited
Serial No. 77422366
11
registrant’s marks which involve the identical term
“sunsations,” the pairs of marks cited by applicant do not
involve identical terms and therefore provide no support
for applicant’s argument. In any event, three pairs of
registrations are not sufficient to demonstrate that it is
common for the same mark to be used by different parties
for sunglasses and retail services.
With respect to applicant’s goods in Class 9, we find
that its “eyewear” is sufficiently related to “retail store
services featuring sunglasses. . .” in the cited
registrations as to be likely to cause confusion. The fact
that applicant’s description of goods includes some
products that are not listed in the recitation of goods
sold in registrant’s retail stores does not alter this
finding. Given the close relationship between eyewear and
eyewear accessories, there is ample support that use of
applicant’s mark on eyewear accessories is also likely to
cause confusion for the reasons articulated herein. Even
if that were not the case, it is sufficient for a finding
of likelihood of confusion if the relatedness is
established for any item encompassed by the identification
of goods or services in the application and cited

14 Applicant’s March 21, 2011 supplemental brief, p. 2.
Serial No. 77422366
12
registration. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
In light of the foregoing, we find that applicant’s
and cited registrant’s products and services are related,
travel in the same channels of trade, and are provided to
the same class(es) of purchasers.
B. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. du Pont, 177 USPQ at 567. In a
particular case, any one of these means of comparison may
be critical in finding the marks to be similar. In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re
Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987).
Moreover, the test 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 overall commercial impression so that confusion as
to the source of the goods offered under the respective
marks is likely to result. San Fernando Electric Mfg. Co.
v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ
1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc.,
Serial No. 77422366
13
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No.
92-1086 (Fed. Cir. June 5, 1992). Here, the marks are
identical in sound, meaning and commercial impression.
Applicant’s mark consists of the term “SUNSATIONS”
with a sun design in the background while registrant’s
marks consist of the term “SUNSATIONS” as a standard
character mark, and in a stylized font. To the extent that
the only “word” included in any of the foregoing marks is
“SUNSATIONS,” applicant’s “SUNSATIONS and Design” mark is
identical in sound to the “SUNSATIONS” marks in the cited
registrations.
In addition to being identical in sound, the marks
have identical meanings. The term “sunsations” is a made-
up term resulting from the combination of the word “sun”
with the word “sensation,” forming a play on words. As
evidenced by the Examiner’s search of online dictionaries,15
the word “sunsations” has no meaning independent of a play
on words or use of the word as a trademark or service mark.
In an attempt to differentiate its mark from the marks
in the cited registrations, applicant argues16 that its mark
consists of a distinctive design with the letters “SA”

15 See search of various online dictionaries attached to July 13,
2009 office action.
16 See applicant’s May 3, 2010 appeal brief, p.1; and March 21,
2011 supplemental brief, p.1.
Serial No. 77422366
14
being most prominent.17 This distinction makes little
difference.
Where a mark comprises both a word and a design, the
word is normally accorded greater weight because it would
be used by purchasers to request the goods or services. In
re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB
1987); Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228
USPQ 461, 462 (TTAB 1985). There is no evidence to show
that consumers would attach some special significance to
the letters “SA,” or would refer to applicant’s goods by
this term, or otherwise understand the letters to be
something other than a part of the term “SUNSATIONS.”
Moreover, the cited mark in Registration No. 1967569
is for the term “SUNSATIONS” in “typed” form, i.e.,
standard character form. A mark that is in typed or
standard characters may be displayed in any lettering
style; the rights reside in the wording or other literal
elements and not in any particular display. In re White
Rock Distilleries Inc., 92 USPQ2d 1282, 1284 (TTAB 2009);
TMEP § 1207.01(c)(iii); 37 C.F.R. § 2.52(a). Registrant is

17 The mark is described as follows: “The mark consists of a
circle shaded at the rim in [orange] and in the [center] in
yellow, orange curly-Qs emanating from the outside perimeter of
the circle, and the term ‘SUNSATIONS,’ with the letters ‘SUN’ and
‘TIONS’ shaded in yellow and outlined in black and the letters
‘SA’ shaded in dark orange and outlined in black, superimposed on
the circle.”
Serial No. 77422366
15
entitled to all depictions of its standard character mark
regardless of the font style, size, or color. Citigroup
Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 1353,
98 USPQ2d 1253, 1259 (Fed. Cir. 2011). Thus, applicant’s
presentation of its mark in a stylized form that includes
emphasis on the letters “SA,” will not avoid likelihood of
confusion with the cited mark in standard characters
because the owner of the cited registration has the right
to present its mark in a similar manner of display. See,
e.g., In re Melville Corp., 18 USPQ2d 1386, 1387-88 (TTAB
1991); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015
(TTAB 1988)
While applicant’s mark contains a design feature,
namely, a “sun” design, this design is not so prominent as
to alter the overall commercial impression created by the
word “SUNSATIONS.” Additionally, the sun design
underscores the connotation of the common literal element
of the marks. There is nothing in the record to indicate
that the term “SUNSATIONS” with the sun design would have a
different commercial impression from the term “SUNSATIONS”
in the cited registrations, and will be seen as emphasizing
the “sun” portion of the term. Minor design features such
as applicant’s sun design do not obviate likelihood of
confusion arising from consideration of the marks in their
Serial No. 77422366
16
entireties. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ
198, 200 (Fed. Cir. 1983); In re Dakin’s Miniatures Inc.,
59 USPQ2d 1593, 1596 (TTAB 1999); In re Appetito Provisions
Co., Inc., 3 USPQ2d at 1554.
Consumers familiar with the registrant’s “SUNSATIONS”
service mark are likely to believe, upon seeing applicant’s
“SUNSATIONS and Design” mark for closely related goods,
that registrant has adopted a variation of its original
mark for such goods. In view of the foregoing, we find
that applicant’s mark “SUNSATIONS and Design” is similar to
the “SUNSATIONS” marks in the cited registrations in terms
of sound, meaning and commercial impression.
C. The Number and Nature of Similar Marks in Use on
Similar Goods.

Applicant argues that “SUNSATIONS” is a weak mark that
is entitled to little protection and that marks
incorporating “SUN” used in connection with sunglasses
exist in a crowded field.18 Neither of these arguments is
persuasive. In support of its position that “SUNSATIONS”
is a weak mark, applicant cites to three existing
registrations, namely, Registration No. 3067031 for retail
stores featuring clothing owned by Sunsations, Inc.;
Registration No. 3059242 for footwear owned by Dynasty
Serial No. 77422366
17
Footwear, Inc.;19 and cited Registration No. 1992246 for
retail store services featuring sunglasses, optical cloths
and cords, T-shirts, sweatshirts and shorts, owned by AT&T
Retail, Inc. Two of the three foregoing registrations,
Nos. 3059242 and 1992246, were owned by the same owner at
the time of registration. This common ownership history,
taken together with the fact that applicant has submitted
evidence of only three registrations for the term
“SUNSATIONS,” one of which is a cited registration and
another which is for “footwear,” does not render
“SUNSATIONS” to be such a weak mark as to preclude a
finding of likelihood of confusion particularly where the
mark is used for related goods and services. Moreover,
absent evidence of actual use (of which none has been
provided), third-party registrations 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

18 See applicant’s May 30, 2010 appeal brief, p.3; and March 21,
2011 supplemental brief, pp. 3-4.
19 Notably, at the time of registration, the owner of Registration
No. 3059242 claimed ownership of Registration No. 1992246, cited
against the subject application.
Serial No. 77422366
18
[and Trademark] Office); and In re Hub Distributing, Inc.,
218 USPQ 284, 285 (TTAB 1983):
[I]t would be sheer speculation to draw any
inferences about which, if any, of the marks
subject of the third party (sic) registrations
are still in use. Because of this doubt, third
party registration evidence proves nothing about
the impact of the third-party marks on purchasers
in terms of dilution of the mark in question or
conditioning of the purchasers as to their
weakness in distinguishing source.

In re Hub, 218 USPQ at 286.
Applicant argues that the weakness of the “SUNSATIONS”
mark is also evidenced by pages from an internet search
which allegedly show that “Sunsations” is widely used to
identify “spa services, tanning salons, dance teams, make
up, travel agency services, garden equipment, etc.”20
Because these pages only contain a list of the “hits” found
in applicant’s search, applicant’s search results have
little probative value. Among other reasons, its list
shows little or none of the context in which the term
“sunsations” is used on the listed websites. See In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1833 (Fed. Cir. 2007) (GOOGLE® search results that provided
very little context of the use of ASPIRINA deemed to be “of
little value in assessing the consumer public perception of

20 See June 22, 2009 response to office action, and applicant’s
March 21, 2011 supplemental brief, p. 3.
Serial No. 77422366
19
the ASPIRINA mark;” “search engine results—which provide
little context to discern how a term is actually used on
the webpage that can be accessed through the search result
link—may be insufficient to determine the nature of the use
of a term or the relevance of the search results to
registration considerations”); In re Tea and Sympathy,
Inc., 88 USPQ2d 1062, 1064 n.3 (TTAB 2008) (truncated
Google® search results entitled to little probative weight
without additional evidence of how the searched term is
used); In re Thomas, 79 USPQ2d 1021, 1026 (TTAB 2006)
(Board rejected applicant’s attempt to show weakness of a
term in a mark through citation to a large number of
GOOGLE® “hits” because the “hits” lacked sufficient
context); In re International Business Machines Corp., 81
USPQ2d 1677, 1679 n.3 (TTAB 2006) (listings of search
results from Google database of limited probative value
because the excerpts are extremely truncated).
Applicant makes a similar argument that the word “sun”
“when used in connection with sunglasses is a crowded
field,” citing 11 registrations for marks beginning with
the word “sun” for sunglasses or eyewear other than
Serial No. 77422366
20
sunglasses.21 Based on the existence of these
registrations, applicant concludes that consumers are
highly likely to recognize the extent of use of the term
“sun” in connection with eyewear such that there is no
likelihood of confusion. Given that there is no evidence
of the use of any of the marks in the cited registrations,
these registrations are of limited, if any, probative
value. See Key Chemicals, Inc. v. Kelite Chemicals Corp.,
464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is our
conclusion altered by the presence in the record of about
40 third-party registrations which embody the word “KEY”.
The great majority of those registered marks are for goods
unrelated to those in issue, and there is no evidence that
they are in continued use. We, therefore, can give them
but little weight in the circumstances present here.”).
The limited value of these registrations is further
diminished by the fact applicant is the owner of at least
three of these registrations. See, In re Albert Trostel &
Sons, 29 USPQ2d at 1785.
Thus, we find on this record that the cited
registrant’s “SUNSATIONS” marks are not weak marks for
eyewear or retail store services.

21 See, copies of TESS reports attached to applicant’s December
28, 2010 response to office action and discussed in applicant’s
Serial No. 77422366
21
As previously recognized by the Board, “even were we
to concede that ‘sun’ marks are weak, it has been said that
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). This is especially the case where
. . . the marks evoke identical commercial impressions and
are used on identical and closely related goods.” In re
Hub, 218 USPQ at 286. Here, we have an even stronger basis
for finding a likelihood of confusion given that the marks
involved are not simply “sun” marks, but consist of the
made-up term “sunsations.”
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 applicant’s
eyewear products in Class 9 and the services in the cited
registrations are so closely related that they are presumed
to move in the same channels of trade and are available to
the same class(es) of purchasers; applicant’s mark and the
marks in the cited registrations are similar in sound,
meaning and commercial impression. Accordingly, we find

March 21, 2011 supplemental brief at pp. 3-4.
Serial No. 77422366
22
that applicant’s “SUNSATIONS and Design” mark for the
“eyewear and eyewear accessories. . . sold only in optical
stores” is likely to cause confusion with the “SUNSATIONS”
marks for “retail store services featuring sunglasses,
optical cloths and cords, T-shirts, sweatshirts and
shorts,” in cited Registration Nos. 1967569 and 1992246.
Decision: The refusal to register is affirmed.