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Lotions and Soaps Are Related to Bath Linens and Towels

Posted by James Juo | Dec 15, 2022 | 0 Comments

The TTAB has affirmed that the stylized GOODBATHS mark in block letters for “Body cream; Body lotion; Body scrub; Body wash; Fragrances; Non-medicated soaps for the body; Non-medicated soaps for the hands; Non-medicated skin care preparation, namely, body mist” in Class 3, is likely to cause confusion with the registered mark GOODBATH in a cursive font for “Bath linen, except clothing; Textile material, namely, towels, table napkins; Bed linen; Towels of textile; shower curtains of textile or plastic” in Class 24. In re Maesa LLC, Ser. No. 88901053 (TTAB Dec. 8, 2022).

With respect to the first DuPont factor, the similarity of the marks, the plural form was “a minor distinction without source-indicating significance.” See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (“It is evident that there is no material difference, in a trademark sense, between the singular and plural forms of the word ‘Zombie' and they will therefore be regarded here as the same mark”); Swiss Grill Ltd. v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015) (singular and plural of SWISS GRILL deemed “virtually identical”); Weider Publ'ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (singular and plural forms of SHAPE considered essentially the same mark).

While both marks are stylized, with Applicant's mark in a bolder print font, and the cited mark in cursive, the marks nonetheless retain a similar overall appearance because they depict the same compound term consisting of two recognizable English words joined without a space between them.

The relatedness of the goods under the second DuPont factor looks to the identifications in the application and cited registration. See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018); Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).

The relatedness of respective goods may be shown by evidence that consumers are accustomed to encountering them offered under the same mark. See Detroit Ath. Co., 128 USPQ2d at 1050 (crediting relatedness evidence that third parties use the same mark for the goods and services at issue because “[t]his evidence suggests that consumers are accustomed to seeing a single mark associated with a source that sells both”); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both parties, if presented, is relevant to a relatedness analysis”).

Here, marketplace evidence in the form of third-party websites showed that soap and towels were packaged together, which emphasizes their complementary nature in the retail market. Presenting these products in a single package, under a single mark, was “especially compelling relatedness evidence.”

The record also included sixteen use-based, third-party registrations showing that the same entity has registered a single mark identifying goods identical to those in the subject application as well as goods identical the cited registration, which was relevant to show that the respective goods are of a type that may emanate from a single source under one mark. See L'Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1140 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).

With respect to the third DuPont factor, the TTAB noted that the third-party retail evidence discussed above establishes that lotions and soaps travel in some of the same channels of trade to the same classes of consumers as bath linens and towels.

The TTAB held that the similarity of the marks for related goods that move in some of the same channels of trade to the same classes of customers renders confusion likely under 15 U.S.C. § 1052(d).

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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