Applicant won an initial skirmish over certain evidence that it filed with its brief on appeal. The Board agreed with Applicant that it could submit certain newsletters belatedly in order to provide "context" for purported "newsletters" that the Examining Attorney had relied on.
As to the relatedness of the involved goods and services, the Examining Attorney pointed to three third-party registrations that cover retail store, mail order, door-to-door, and home party cosmetic services, and brochures, pamphlets, and catalogs for cosmetics. The Board observed, however, that those types of materials "bear little resemblance" to Applicant's industry-targeted newsletters, since they are not intended for members of the general public. The Board therefore found that the channels of trade do not overlap.
Applicant urged that its customers are sophisticated, and would not be confused. The Board agreed. Applicant's customers would be smarter that the average consumer and would not be confused by advertisements "blasted from a national retail firm" or by written materials handed out at a home party or via door-to-door sales.
The Board deemed this sophistication factor to be "critical" in its finding that confusion is not likely.
TTABlog comment: I wonder whether everyone in the cosmetics industry is that sophisticated? I mean, when I wander through the Prudential Mall and glance into the big cosmetics store, I don't see many rocket scientists, you know what I mean?
Text Copyright John L. Welch 2012.
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