The Jilly Box Inc.

This opinion is not a
precedent of the TTAB
Mailed: November 19, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re The Jilly Box Inc.
_____
Serial No. 90253914
_____
Laura A. Genovese and Leigha R. Santoro, of K & G Law LLC,
for The Jilly Box Inc.
Jules Dean, Trademark Examining Attorney, Law Office 120,1
Joshua Toy, Managing Attorney.
_____
Before Dunn, Casagrande, and Lavache, Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
The Jilly Box Inc. (Applicant) seeks registration on the Principal Register of the
mark THE JILLY BOX (in standard characters) for a wide variety of goods and
services falling into fifteen (15) different International Classes.2 Only a small fraction
of those goods and services are at issue in this appeal, which, as we will explain in
1 The application was originally assigned to a different examining attorney but was re-
assigned twice during prosecution.
2 Application Ser. No. 90253914 was filed on October 14, 2020, under Section 1(b) of the
Lanham Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s bona fide intent to use the
marks in commerce, and Section 44(d), 15 U.S.C. § 1126(d), based on Canadian Application
2,030,466. After the Canadian Registration issued, the filing basis was amended to Sections
1(b) and 44(e).

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the next section, concerns refusals under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), due to likelihood of confusion with two different registered marks.
I. Preliminary matters: the scope of the refusal and this appeal
The June 28, 2024, Final Office Action refused registration only as to the goods in
International Class 14 and as to some, but not all, of the services identified in
International Class 35.3 At the same time Applicant appealed this final, partial
refusal,4 it filed a request to divide the application to carve the allowed classes of
goods and services out of the original application and place them into a separate
application, leaving only the two refused classes of goods and services in the original
application.5 The Office granted the request to divide.6 This appeal thus concerns only
the original application, which now contains only the Class 14 goods and the Class 35
services.
There are two further wrinkles. The June 24, 2024, Final Office Action specified
that it was a “partial” refusal as to the services in Class 35 because it pertained only
to certain of the identified services. After Applicant filed its appeal brief,7 the
Examining Attorney requested a remand to further clarify which services were
3 See June 28, 2024, Final Office Action, at TSDR 3. Any citations to specific pages of
prosecution filings will be to .pdf-format versions of the documents as downloaded from the
USPTO’s TSDR electronic trademark docketing system.
4 See 1 TTABVUE. References to the briefs and appeal record cite to the Board’s TTABVUE
electronic docket system. The number preceding “TTABVUE” represents the docket number
assigned to the cited filing in TTABVUE and any number immediately following “TTABVUE”
identifies the specifically-cited page(s), if any.
5 See Sept. 30, 2024, Request to Divide Application.
6 See Oct. 3, 2024, Notice.
7 See 6 TTABVUE.

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subject to the partial refusal,8 which we granted.9 A Subsequent Final Office Action
then clarified that the partial refusal applies only to the following goods and services:
Class 14: jewellery; curated boxes being kits comprised of
jewellery;10 and
Class 35: subscription services, namely, online retail store
services featuring subscription boxes containing clothing and
handbags, footwear, fashion accessories in the nature of belts,
scarves, shoulder wraps, mittens, gloves and socks and headwear,
health and beauty, home décor, technology, fitness and food
products; promoting the goods and services of others through the
distribution of boxes filled with assorted items in the fields of
fashion, health and beauty, home décor, technology, fitness and
food products.11
The Subsequent Final Office Action based its refusal as to each class on different
registered marks. As to the jewelry and related goods in Class 14, the Examining
8 See 8 TTABVUE (request).
9 See 9 TTABVUE (order).
10 See Apr. 7, 2025, Subsequent Final Office Action, 10 TTABVUE. This represents the
totality of goods that have always been identified in Class 14 (and which have been the
subject of all Office actions throughout prosecution).
11 See id. This represents only a subset of the services in Class 35. Irrespective of how we
resolve this appeal, therefore, the following Class 35 services, which are not subject to the
partial refusal before us, will necessarily be allowed:
consumer membership program services, namely, membership club services providing
discounts and administrative processing of rebates for the goods and services of others
in the fields of fashion, beauty, home décor, fitness and food products; marketing,
advertising, and promoting the goods and services of others through the internet and
wireless electronic devices; promoting the goods and services of others by providing a
website featuring product price-comparison information and reviews, consumer
research information about consumer practices and trends, discount information and
coupons, and links to the retail websites of others, all in the fields of food, fashion,
beauty, home décor, fitness and technology; market analysis and research services,
namely, collecting, analyzing, processing and providing customer preference and
product usage data to providers of food, fashion, beauty, home décor, fitness products
and technology.

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Attorney based the refusal on the mark , which is registered in
International Class 14 for “jewelry.”12
As to the specified subset of services in Class 35, the Examining Attorney refused
registration in light of a prior registration of the standard-character mark JILLY’S
MOM MADE THAT, which identifies the following services in Class 35:
On-line retail store services featuring woman, teens, and
children’s apparel, namely, shirts, long sleeve shirts, short sleeve
shirts, tank tops, sweaters, dresses, pants, capris, jackets,
footwear, hats and caps, children’s and infant’s apparel, namely,
shirts, tank tops, jackets, pants, capris, jumpers, overall
sleepwear, pajamas, rompers and one-piece garments, bodysuits,
baby bibs not of paper, children’s headwear, gloves for apparel,
hats for infants, one piece garment for infants and toddlers, shirts
for infants, babies, toddlers and children, sleeping garments,
shoes, sandals, boots, purses, clutches, handbags, all-purpose
carrying bags, wallets, and plush toys.13
Briefing then continued. Applicant filed a Supplemental Brief,14 followed by the
Examining Attorney’s brief15 and, finally, Applicant’s reply brief.16 The appeal is now
ready for decision.
For the reasons set forth below, we affirm the refusal as to the Class 14 goods but
reverse the partial refusal as to the specified Class 35 services.
12 Reg. No. 3803014 was registered on June 15, 2010, and is renewed. The registration
describes the mark as follows: “The mark consists of ‘jillijewels’ written in a cursive font with
asterisks over the two ‘j’’s and a curlicue under the first ‘e’ in the word ‘jillijewels’.”
13 Reg. No. 5320185 was registered on October 31, 2017 (Section 8 use declaration accepted).
14 See 12 TTABVUE.
15 See 14 TTABVUE.
16 See 15 TTABVUE.

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II. Analysis
A. Section 2(d) generally
Section 2(d) of the Trademark Act prohibits registration of a mark that “so
resembles a mark registered in the Patent and Trademark Office … as to be likely,
when used on or in connection with the goods of the applicant, to cause confusion, or
to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). We determine whether confusion
is likely by analyzing all probative facts in evidence relevant to the likelihood-of-
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973). See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed.
Cir. 2023). Though DuPont lists thirteen numbered factors (some with subparts), we
generally address only those that are relevant and material to the case before us, see,
e.g., Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir. 2004); Octocom
Sys., Inc. v. Hou. Comput. Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990)—typically
the factors that the parties address and on which there is relevant evidence in the
record. See, e.g., Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376,
1379 (Fed. Cir. 2025); In re Dixie Rests., Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997).
We then weigh together our findings on these factors to determine if, on balance, they
indicate that confusion is likely. See, e.g., Charger Ventures, 64 F.4th at 1381; In re
Majestic Distilling Co., 315 F.3d 1311, 1319 (Fed. Cir. 2003).

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B. Comparison of the goods, trade channels, and classes of
customers
One of the factors relevant to likelihood of confusion is “[t]he similarity or
dissimilarity and nature of the goods or services as described in an application or
registration.” DuPont, 476 F.2d at 1361. This, along with the comparison of the
marks, is usually a key consideration. Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 1103 (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.”).
The Examining Attorney argues that, because the Applicant lists “jewellry” and
the cited registration also lists jewelry, the goods are identical to
that extent.17 As to the Class 35 services, the Examining Attorney argues that the
services in the application are related to the services in the cited registration for
JILLY’S MOM MADE THAT because the evidence of record shows “shows that the
same entities commonly providing the relevant services under the same mark and
17 See 14 TTABVUE 8. The Examining Attorney also argues that the remaining goods in
the application (“curated boxes being kits comprised of jewellery”) are related to the goods in
the cited registration. See id. Where, as here, the evidence shows that third parties sell both
goods in the application and goods in the cited registration under the same marks, that bears
on whether the consuming public views the goods as related in the sense that they may
emanate from the same source. See, e.g., Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1117
(Fed. Cir. 2024; Charger Ventures, 64 F.4th at 1382; In re Detroit Athl. Co., 903 F.3d 1297,
1306 (Fed. Cir. 2018); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed.
Cir. 2002). As explained infra, however, this argument is not critical because our decision is
based on the fact that the application and registration both list jewelry.

Serial No. 90253914
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via the same trade channels.” We agree that the record indeed supports these
findings.18
Two more relevant factors look to determine the extent to which the trade
channels and classes of customers for the goods or services are similar or dissimilar.
See DuPont, 476 F.2d at 1361 (listing “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels” as well as “buyers to whom sales are made”). Here,
as to the Class 14 “jewelry” goods, the Examining Attorney relies on the legal
presumption that, to the extent the goods are identical, then, absent any restriction
in the application or registration, the trade channels and classes of customers, too,
are identical.19 See, e.g., In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012). As to
the rest of the remaining Class 14 goods in the application and the Class 35 services,
the Examining Attorney pointed to: (1) several third-party websites that offer both
jewelry (as in the ’014 Registration) and jewelry kits (as in the application), and (2)
several other third-party websites that offer fashion subscription-box services (as in
the application) and online retail store services for the goods that come in the
subscription boxes (as in the ’185 Registration).20 This shows overlap in the channels
of trade and classes of customers between Applicant’s goods and services and those
in the two cited registrations. See, e.g., In re Dare Foods Inc., No. 88758625, 2022 WL
970319, at *4 (TTAB 2022) (“[T]he Examining Attorney has introduced evidence that
18 See id. at 9 (listing third-party websites in the record).
19 See id.
20 See id. at 8-9.

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goods related to Applicant’s goods are offered for sale on websites of third-party food
retailers that also offer goods identified in the cited registration. This evidence
supports a finding that Applicant’s goods and Registrant’s goods are offered in
common channels of trade to overlapping purchasers.”).
Applicant’s appeal brief acknowledged that the similarity of the goods and services
is a factor “of particular relevance,” but noted that even though Applicant and the
owner of the ’014 Registration both offer jewelry under their marks, confusion was
nevertheless unlikely due to “those factors labeled as (1) and (6) above and discussed
further below.”21 Thus, Applicant’s appeal brief did not contest the Examining
Attorney’s evidence, arguments, or findings on the second DuPont factor as to either
class, nor as to the channels of trade or classes of customers (or any other DuPont
factor). Nor did its “Supplemental Appeal Brief” filed following the remand.22
In its reply brief—Applicant’s third and final brief in this appeal—Applicant, for
the first time, contests the Examining Attorney’s finding that the goods are similar
and the trade channels are the same. Citing a few of the webpages the Examining
Attorney placed in the record, Applicant urges that “the foregoing evidence does not
demonstrate that the same entities commonly provide the relevant goods under the
same mark or through identical trade channels.”23 Though Applicant does not
expressly indicate to which cited registration this argument pertains, the websites
21 See 6 TTABVUE 12. Applicant’s appeal brief made no mention, as to the ’185 Registration,
of the findings as to the similarity of the services, the trade channels, and classes of
customers.
22 See 12 TTABVUE.
23 See 15 TTABVUE 5-6.

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Applicant identified were cited by the Examining Attorney solely with respect to the
’014 Registration for jewelry, so we take Applicant’s reply brief argument to be
directed to likelihood of confusion only as to the Class 14 goods.
We hold that Applicant forfeited its right to contest these findings because it did
not discuss them in its appeal brief. Issues raised first in a reply brief are not
normally considered because the Examining Attorney does not have an opportunity
to respond. See, e.g., Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1375 n.4
(Fed. Cir. 2005) (refusing to consider arguments raised for the first time in reply brief
and not addressed in opening brief as those arguments are considered to have been
waived); see also TBMP § 1203.02(g) (“If an applicant, in its appeal brief, does not
assert an argument made during prosecution, it may be deemed waived by the
Board.”); cf. In re Princeton Equity Group LLC, No. 97397212, 2025 WL 1638891, at
*2-3 (TTAB 2025) (statement in appeal brief that purports to incorporate-by-
reference arguments made in prosecution deemed to forfeit any issues not otherwise
developed in the brief). See generally In re Google Techs. Holdings, LLC, 980 F.3d
858, 862-63 (Fed. Cir. 2020) (argument not timely raised is forfeited). We find
forfeiture especially applicable here, where Applicant’s opening appeal brief
affirmatively acknowledged the finding of similarity of the goods and services but
then contested only the first and sixth DuPont factors, arguing that they collectively
outweighed the similarity of the goods and services.
Even if Applicant had contested these findings in its appeal brief, the argument
gets Applicant nowhere. As to the Class 14 goods and the ’014 Registration, the

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evidence shows that the goods are indeed in part identical. It is well-settled that,
where confusion is likely as to even one of the kinds of goods listed in an application,
the application is refused as to the entire class.24 See, e.g., SquirtCo v. Tomy Corp.,
697 F.2d 1038, 1041 (Fed. Cir. 1983); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
Inc., 648 F.2d 1335, 1336 (CCPA 1981); Toro Co. v. Hardigg Indus., Inc., 549 F.2d
785, 790 (CCPA 1977); Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 330 (CCPA
1963). Thus, consideration of these additional third-party websites is not critical to
our resolution of this appeal.
In sum, we find that Applicant, by failing to contest the Examining Attorney’s
findings on the similarity of the goods/services, trade channels, and classes of
customers as to the ’185 Registration, forfeited its right to contest these findings. As
to the ’014 Registration, we find that Applicant forfeited its right to contest these
findings as well. In any event, we agree with the Examining Attorney’s finding
because the record amply supports them. In the final weighing of the factors, these
findings will support a conclusion that confusion is likely.
We will now proceed to the two factors that Applicant properly contests and upon
which it trains most of its fire.
24 An examining attorney may, however, as the Examining Attorney did here as to the ’185
Registration, carve out certain goods or services within a class from a refusal. The Examining
Attorney did not do that as to the refusal based on the ’014 Registration, however.

Serial No. 90253914
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C. The effect of third-party uses and registrations of marks
containing the name JILL or a variant
Applicant argues that “consumers are used to differentiating between marks that
consist of common first names,” saying that it “provided charts containing numerous
registered marks for goods in Class 14 and services in Class 35.”25 The pages
Applicant cites contain print-outs of registrations for marks containing or consisting
of the names Sara and Stella.26 Looking beyond the cited pages, we also see other
print-outs for a few registrations containing or consisting of the names Emma,
Jennifer, Lani, Nicole, and Charlotte. Applicant also points to “another chart of
registered marks incorporating the terms JILLY/JILL/JILLIAN.”27
DuPont lists as a potentially relevant factor “[t]he number and nature of similar
marks in use on similar goods.” 476 F.2d at 1371. We do not find Applicant’s
arguments about marks that do not consist of or contain the name “Jill” or some
variant (i.e., its argument concerning marks with other female first names) to be
persuasive because those marks are not similar (except in an abstract sense) to the
marks at issue here, which all contain JILLY or JILLI. Generally, the third-party
marks also must be at least arguably as similar to the cited registrations as
Applicant’s mark. See, e.g., Specialty Brands, Inc. v. Coffee Bean Distributors, Inc.,
748 F.2d 669, 675 (Fed. Cir. 1984); Palisades Pageants, Inc. v. Miss Am. Pageant, 442
25 See 6 TTABVUE 18 (citing Sept. 17, 2021 Response to Office Action, at TSDR 109-17).
26 We note the chart to which Applicant appears to refer is in the cited Response at TSDR
143-49.
27 See 6 TTABVUE 19.

Serial No. 90253914
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F.2d 1385, 1388 (CCPA 1971).28 Thus, the third-party marks that contain Jill or some
variant are substantially more pertinent than the other first names, because such
marks have an element in common with Applicant’s mark and the marks in both cited
registrations.
If there are a significant number of such registrations, that may show that the
common element has some degree of conceptual weakness. For example, the existence
of several such registrations may indicate that the term at issue has a descriptive or
suggestive connotation as to the goods of services at issue. As the Federal Circuit said
in Spireon, Inc. v. Flex Ltd., 71 F.4th 1355 (Fed. Cir. 2023):
The existence of third-party registrations on similar goods can
bear on a mark’s conceptual strength. Specifically, third-party
registrations containing an element that is common to both the
opposer’s and the applicant’s marks can show that that element
has “a normally understood and well-recognized descriptive or
suggestive meaning.” Accordingly, we have considered the
existence of third-party registrations under the sixth DuPont
factor.
Id. at 1363; see also Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,1339
(Fed. Cir. 2015) (“Third party registrations are relevant to prove that some segment
of the composite marks which both contesting parties use has a normally understood
28 See also In re Nett Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (the USPTO “must
decide each case on its own merits … [e]ven if some prior registrations had some
characteristics similar to” Applicant’s mark) (citation omitted); see also In re Boulevard Ent.,
Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (“The fact that, whether because of administrative
error or otherwise, some marks have been registered even though they may be in violation of
the governing statutory standard does not mean that the agency must forgo applying that
standard in all other cases.”). We decide cases on the marks, relevant evidence, and factors
before us, not based on abstract analogies to other registrations not before us that issued for
other marks, at other times, in other circumstances, and on unknown other records. See, e.g.,
In re Harris-Intertype Corp., 518 F.2d 629, 632 (CCPA 1975); In re Cooper, 254 F.2d 611, 617
(CCPA 1958).

Serial No. 90253914
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and well-recognized descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak.”) (citation omitted). Third party registrations thus
can function like a dictionary of sorts, shedding light on what the term at issue may
mean to market participants. See, e.g., Interstate Brands Corp. v. Celestial
Seasonings, Inc., 576 F.2d 926, 928 (CCPA 1978) (“We find no error in the citation of
nine third-party registrations primarily to show the meaning of (‘zing’) in the same
way that dictionaries are used.”) (cleaned up; citation omitted); accord Specialty
Brands, 748 F.2d at 675; Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA
1976).
But use as a dictionary to show that JILL has some descriptive or suggestive
significance in the fields of jewelry or online retail apparel store services is not the
purpose for which Applicant uses these third-party registrations. Rather, it argues
that the name “Jill” and variants of it “are so commonly used, consumers will focus
on other aspects of the marks (emphasis added)” to differentiate source.29 It is well-
settled, however, that registrations aren’t evidence of use. See, e.g., In re Mighty Leaf
Tea, 601 F.3d 1342, 1347 (Fed. Cir. 2010); Tektronix, 534 F.2d at 917; Conde Nast
Publications, Inc. v. Miss Quality, Inc., 507 F.2d 1404, 1406-07 (CCPA 1975); Smith
Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 1005 (CCPA 1973); AMF Inc. v. Am.
Leisure Prods., Inc., 474 F.2d 1403, 1406 (CCPA 1973). Evidence of use is evidence of
use. See Trademark Rule 2.122(b) (2), 37 C.F.R. § 2.122(b) (2) (“The allegation in an
application for registration, or in a registration, of a date of use is not evidence on
29 See id. at 20.

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behalf of the applicant or registrant; a date of use of a mark must be established by
competent evidence. Specimens in the file of an application for registration, or in the
file of a registration, are not evidence on behalf of the applicant or registrant unless
identified and introduced in evidence as exhibits during the period for the taking of
testimony. Statements made in an affidavit or declaration in the file of an application
for registration, or in the file of a registration, are not testimony on behalf of the
applicant or registrant.”).
Applicant notes that it did provide evidence of use for “a few” of the third party-
registrations it listed, pointing us to its Request for Reconsideration.30 Third-party
use shows something somewhat different from third-party registrations. Third-party
usages of similar marks on similar goods, if common enough, “can show that
customers have been educated to distinguish between different marks on the basis of
minute distinctions.” Jack Wolfskin Ausrustung Fur Draussen GmbH v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015) (citation omitted).
For us to find weakness of the cited marks for their respective goods or services,
the third-party registrations and use evidence must be in the same market as the
goods or services in the cited registration. See, e.g., Nat’l Cable Tel. Ass’n, Inc. v. Am.
Cinema Editors, Inc., 937 F.2d 1572, 1580 (Fed. Cir. 1991) (“None of the third party
marks and uses of ACE made of record are nearly as closely related to the activities
of the parties as the virtually identical uses of the parties are to each other.”) (citation
omitted), cited in Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
30 See id. at 20.

Serial No. 90253914
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1315, 1325-26 (Fed. Cir. 2018)). In its Request for Reconsideration, Applicant
supplied screenshots of webpages using the following marks in connection with the
following goods/services: SUPER JOCK ’N JILL (online retail sales of insoles,
sunglasses, socks);31 JILL MCGOWAN (online retail sales of clothing);32 JILL
ROBERTS (online retail sales of clothing);33 J. JILL (online retail sales of jewelry,
clothing);34 JILL PLATNER (online retail sales of jewelry and accessories);35 and
JILL RENO COLLECTION (online retail sales of jewelry).36 Applicant does not
specify which of the two classes to which its third-party use evidence supposedly
pertains, leaving us to piece that together. The first four marks listed above appear
pertinent to the Class 35 services refusal; the last three are pertinent to the Class 14
refusal (the J. JILL webpages are pertinent to both).
In addition, as mentioned, the third-party marks also must be at least arguably
as similar to the cited registrations as Applicant’s mark. See, e.g., Specialty Brands,
748 F.2d at 675; Palisades Pageants, 442 F.2d at 1388. While the marks cited by
Applicant all contain the term JILL, none contain the variant at issue here, JILLY
or JILLI-. That detracts a bit from their probative value.
31 See Sept. 30, 2024, Request for Reconsideration, at TSDR 290.
32 See id. at 291.
33 See id. at 296.
34 See id. at 294-95.
35 See id. at 292.
36 See id. at 293.

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Overall, Applicant’s limited third-party use evidence has some impact on the sixth
factor for each class, but not a lot.
Applicant supplies substantially more third-party registrations than it does
instances of third-party use. As mentioned, third-party registrations of similar marks
usually are of limited utility, acting as a practical dictionary that can illuminate
whether the term at issue has a descriptive or suggestive meaning in a particular
field. But, again, that’s not what Applicant argues. Applicant points to these
registrations and argues that “JILL” marks “are so commonly used, consumers will
focus on other aspects of the marks” to distinguish sources.37
Sometimes when the number of relevant third-party registrations is large enough,
we can take that into account as evidence of consumer exposure, even in the absence
of the extent to which consumers have actually been exposed to the specific marks.
That is because, when the number of active, use-based third-party registrations gets
high enough, it’s hard to avoid the inference that consumers must have been exposed
to some degree to use of at least some of these marks. That is what we understand
the Federal Circuit to have meant when it said that evidence of that magnitude can
be “powerful on its face” even when evidence of use is of the marks in those
registrations is deficient or lacking. See Jack Wolfskin, 797 F.3d at 1373-74; Juice
Generation, 794 F.3d at 1339. When arguments like the one Applicant makes are
raised, the issue is whether the registration evidence is numerous and pertinent
37 6 TTABVUE 20.

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enough to be “powerful on its face” under the sixth factor even without evidence of
use.
To illustrate the quantity and quality of evidence that elicited the Court’s
statements that such evidence was “powerful on its face” in the Jack Wolfskin and
Juice Generation cases, an examination of the evidentiary records before the Board
in those case reveals that: in Jack Wolfskin, where both marks had paw prints in
them, there were, by our count, 94 third-party registrations and 28 third-party uses
of paw prints in the record, which the Court characterized variously as “ubiquitous”,
“considerable”, and “extensive”; and, in Juice Generation, where both parties’ marks
had the words PEACE and LOVE in them, there were 12 third-party registrations
and 36 third-party uses of marks that contained PEACE and LOVE (usually with a
food or drink item) in the relevant market.
With that understanding we now turn to the third-party registrations and
Applicant’s argument about how consumers react to them. At the threshold,
Applicant’s brief does not list the registrations to which its third-party registration
argument refers. Further, the only pages it cites are to lists it made in arguments in
prosecution. But charts or list of registrations aren’t evidence. See, e.g., In re Star
Belly Stitcher, Inc., No. 85247730, 2013 WL 4635976, at *6 (TTAB 2013) (“Mere
listings of registrations [in a brief] are not sufficient to make the registrations of
record.”) (citation omitted); accord In re Compania de Licores Internacionales S.A.,
No. 75010230, 2012 WL 1267898, at *2 (TTAB 2012); In re Hoefflin, No. 77632391,
2010 WL 5191373, at *3 (TTAB 2010); In re Fiesta Palms, LLC, No. 76595049, 2007

Serial No. 90253914
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WL 950952, at *6 (TTAB 2007). Even though we aren’t required to scour the record
to see if there is evidence that an applicant didn’t direct us to that may support it, we
did so anyway here. In so doing we see that Applicant also provided the status and
title copies of these registrations from the USPTO’s TSDR database. We will now
summarize them. And unlike Applicant, we will organize them as to each class, since
we have to assess the refusals as to each class separately.
As to the Class 14 “jewellry” refusal in light of the registration for ,
Applicant presented the following registrations for goods including jewelry: JILL
CODE, Reg. No. 5919117;38 JILL MILAN, Reg. No. 4132402;39 JILL PLATNER, Reg.
No. 3016955;40 J. JILL, Reg. No. 2549252;41 JILL RENO, Reg. No. 6676025;42
PLANET JILL, Reg. No. 7298036;43 JILLIAN ABBOUD FINE JEWELRY, Reg. No.
5833502;44 and , Reg. No. 6270890.45 As with the examples of third-
38 Sept. 17, 2021, Response to Office Action, at TSDR 48-49.
39 Id. at 50.
40 Id. at 51-52.
41 Id. at 55-56.
42 Sept. 30, 2024, Request for Reconsideration, at TSDR 26-27.
43 Id. at 57-59.
44 Id. at 62-63.
45 Id. at 64-66. Though this registration does not identify “jewelry” as such, it lists “wrist
key chains” and key chain bracelets,” which are a subset of jewelry. Further, we take notice
that a few other jewelry registrations that Applicant listed (JILL STUART, Reg. No. 2808987;
JILL MILAN, Reg. No. 4503275; and VANJILL, Reg. No. 6738492) have been cancelled.
Cancelled registrations lack probative value for this purpose. See, e.g., In re Virtual
Independent Paralegals, LLC, No. 86947786, 2019 WL 1453034, at *10 (TTAB 2019) (“A
cancelled registration is not evidence of any existing rights in the mark.”) (citation omitted);

Serial No. 90253914
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party use, none of these registrations are for the variant JILLY or JILLI-. And unlike
the marks THE JILLY BOX and JILLIJEWELS, which essentially comprise a first
name (JILLY or JILLI-)46 followed by a descriptive or generic term (BOX or
JEWELS), most of these third-party marks have a last name (or in the case of J. JILL,
a preceding initial). Still, taken together, we think that this shows that, as to jewelry,
there may be some modest degree of weakness as to marks comprising the name JILL
or clear variants thereof like JILLY or JILLI. As to the Class 14 refusal for jewelry,
this will weigh in Applicant’s favor in the final weighing. How much, we can’t say in
the abstract. We will make that determination when, in our last step under DuPont,
we weigh it together with the other findings.47
As to the refusal pertaining to Applicant’s Class 35 services, based on the ’185
Registration, which covers online retail store services including clothing, Applicant
provided evidence of the following live48 registrations for retail clothing store services
In re Kysela Pere et Fils, Ltd., 2011 WL 1399224, at *2 (TTAB 2011) (“Dead or cancelled
registrations have no probative value at all.”) (cleaned up). If a registration is properly made
of record, we may, and frequently do, take judicial notice of any pertinent status changes to
such registrations. See, e.g., In re Audemars Piguet Holding SA, No. 90045780, 2025 WL
21318, at *21 n.103 (TTAB 2025); In re Wilson, No. 75285881, 2001 WL 58395, at *6 n.15
(TTAB 2001).
46 It’s not clear to us that JILZARAH is a name at all.
47 In particular, the impact of the evidence on the sixth factor depends on how similar the
applicant’s mark is to the mark in a cited registration. See, e.g., Specialty Brands, 748 F.2d
at 675; Palisades Pageants, 442 F.2d at 1388. The more similar the compared marks, the less
impact the sixth factor may have. But the greater the dissimilarities, the more impact the
same showing on the sixth factor may will have on the final weighing.
48 One of the registrations Applicant listed was cancelled on Nov. 22, 2024, for failure to file
required renewal documents (Reg. No. 5465450, see Sept. 30, 2024, Request for
Reconsideration, at TSDR 270-71).

Serial No. 90253914
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that sell, inter alia, clothing items: J.JILL, Reg. No. 5845166;49 YOU’RE HOME
WITH JILL, Reg. No. 4529226;50 JILL’S CONSIGNMENT, Reg. No. 4183160;51
PURE JILL, Reg. No. 3399428;52 JILL STUART, Reg. No. 4578238;53 JACK AND
JILL, Reg. Nos. 7292728 & 5961893;54 and JILL ROBERTS, Reg. No. 7424882.55
Broadening beyond retail store services, Applicant also listed quite a few
registrations for clothing goods. These registrations for goods are slightly less
pertinent than the registrations for retail store services selling clothing, but they do
have some probative value. They are: JILLYEOR, Reg. No. 7387385;56 CHILLY
JILLY, Reg. No. 3304431;57 MZJILL, Reg. No. 6400272;58 JILL TAKAHASHI, Reg.
No. 4971368;59 JILLBANG, Reg. No. 6022592;60 JILL MARTIN, Reg. No. 7189882;61
49 Sept. 17, 2021, Response to Office Action, at TSDR 127-28.
50 Id. at 131-32. Note that this registration does not mention clothing but only retail store
services “in the field of general merchandise.”
51 Id. at 133-34.
52 Id. at 135-36. There’s also a clothing registration for PURE JILL, see id. at 150-65, but
since it’s the same third party, we won’t count it twice.
53 Sept. 30, 2024, Request for Reconsideration, at TSDR 246-48 (this registration mentions
only cosmetics).
54 Id. at 194-200. This registration (and stylized version with a design) are for “Retail store
services featuring sex toys, personal lubricants, adult clothing, sexual health and wellness
products, novelty items, and shoes.” Adult clothing appears to be a type of clothing.
55 Id. at 258-61 (includes online retail).
56 Id. at 105-06.
57 Id. at 107-09.
58 Id. at 110-11.
59 Id. at 112-14.
60 Id. at 115-16. Applicant also submitted another registration of this mark for other goods.
We will not list it separately since it reflects one third-party source, not multiple sources.
61 Id. at 117-19.

Serial No. 90253914
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MATERIALJILL, Reg. No. 6464959;62 JACK & JILL, Reg. No. 6972483;63 J. JILL,
Reg. No. 2226071;64 JILL DENISE, Reg. No. 7146988;65 JIL SANDER, Reg. No.
1534919;66 , Reg. No. 6694819;67 JILLUMI, Reg. No. 6589884;68 JILL
MCGOWAN, Reg. No. 3837648;69 JIMANDJILLY, Reg. No. 6620732;70 and JILLSKY,
Reg. No. 583388471. Likewise, a few registrations for selling handbags, which are part
of the ’185 Registration, are also relevant: JILL JOANNE (and JILLJOANNE.COM)
for “Purses and handbags made of leather and cloth,” Reg. Nos. 4154791 and
4124460;72 JILL MILAN for “All-purpose carrying bags; Briefcases; Handbags;
Overnight bags; Purses; Tote bags; Wallets,” Reg. No. 4132402;73 for
footwear, Reg. No. 7284140;74 SUPER JOCK ’N JILL for a retail sporting goods store,
62 Id. at 121-23.
63 Id. at 124-25. Applicant submitted a second registration for this same source, but we won’t
count this source twice.
64 Id. at 126-45.
65 Id. at 148-49.
66 Id. at 166-73. We do not count the stylized registration for this mark for the same goods,
as it reflects the same third-party source, not multiple third-party sources.
67 Id. at 178-80.
68 Id. at 181-83.
69 Id. at 184-86.
70 Id. at 189-90.
71 Id. at 191-93.
72 Id. at 67-70, 88-90.
73 Id. at 91-93.
74 Id. at 229-31.

Serial No. 90253914
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Reg. No. 2203983;75 and CHRISTIE & JILL for handbags and footwear, Reg. No.
6038683.76
Many of these are combined with other distinctive terms, and that detracts
somewhat from their probative value. Still, taken together with the few instances of
third-party use we listed above, this is a relatively stronger showing than Applicant
made as to the cited registration for Class 14 goods. This will weigh in Applicant’s
favor when we conduct the final weighing of the relevant factors as to the Class 35
refusal in light of the ’185 Registration. As noted, we can’t determine how heavily this
will weigh in the abstract. We will have to wait until the last step where we weigh all
the factors together and see how they might interact with one another.
D. Comparison of the marks
We finally come to “[t]he similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression.” DuPont, 476 F.2d
at 1361. This is always an important inquiry. See, e.g., Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002); Federated Foods, 544 F.2d at 1103.
“Similarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (citation omitted). “The proper test is … whether
the marks are sufficiently similar in terms of their commercial impression such that
75 Id. at 249-51. We take notice that retail sporting goods stores typically sell sporting
clothing.
76 Id. at 97-101. Two additional registrations, see id. at 102-04, 187-88, were cancelled and
so are of no probative value. Another is simply too far afield from the universe of relevant
goods or services (DR. JILL HEALTH for retail store services for various specific types of
goods not including jewelry, clothing, or other goods listed in the ’185 Registration or
application, id. at 252-54).

Serial No. 90253914
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persons who encounter the marks would be likely to assume a connection between
the parties.” i.am.symbolic, 866 F.3d at 1323 (citation omitted); see also Phillips
Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960) (“This issue is
whether the marks are confusingly similar, not whether they are identical.”) (citation
omitted).
In assessing the marks, we compare their “appearance, sound, connotation and
commercial impression.” Juice Generation, 794 F.3d at 1340 (citation omitted); accord
i.am.symbolic, 866 F.3d at 1324. This factor supports the refusal “if the similarity in
either form, spelling or sound alone is likely to cause confusion.” Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (citation omitted); see also
Hancock v. Am. Steel & Wire Co., 203 F.2d 737, 740 (CCPA 1953) (“it is proper to
consider [the marks’] appearance, sound and meaning … but a combination of all
three factors need not necessarily exist”) (cleaned up; citations omitted). We keep in
mind that “marks must be considered in light of the fallibility of memory and not on
the basis of side-by-side comparison.” St. Helena Hosp., 774 F.3d at 751 (cleaned up;
citation omitted). To determine the overall commercial impression of marks, our
primary reviewing Court has instructed that it is acceptable to identify and consider
all the elements that make up a mark, to determine the relative impact the elements
have on the whole mark, so long as the ultimate comparison of the marks compares
both marks in their entireties. See, e.g., In re Detroit Athl. Co., 903 F.3d 1297, 1305
(Fed. Cir. 2018).

Serial No. 90253914
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We start with the Class 14 refusal in light of . We note that the
literal element is a compound term that puts together a form of the name JILL with
the noun JEWELS. It’s in a stylized cursive typeface, all lowercase, with dots over
the “i”s and asterisks serving to dot the “j”s. Underneath the letters “j-e-w” in the
middle of the term JILLIJEWELS is a small “curlicue” accent design. Applicant’s
mark THE JILLY BOX is in standard character format, and thus is not limited to
any particular typeface. Usually the article “THE” contributes little to a mark’s
commercial impression, typically serving only to call attention to whatever noun
follows. See, e.g., In re Thor Tech, Inc., No. 78634024, 2009 WL 1098997, at *2 (TTAB
2009); U.S. Nat’l Bank v. Midwest Sav. and Loan Ass’n, 1977 WL 22507, at *5 (TTAB
1977). Applicant does not argue that “THE” plays any larger or more significant role
in THE JILLY BOX. The term “JILLY” is used as a name and modifies the term
“BOX,” indicating that the box has some relation to “JILLY.”77 Because “box” is
descriptive of the curated “boxes” Applicant intends to offer, and because it comes
after the term JILLY, it plays a bit less of a role in creating the overall commercial
impression of Applicant’s mark as a whole. See, e.g., Hewlett-Packard Co. v. Packard
Press, Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (“Given the descriptive nature of the
disclaimed word ‘Technologies,’ the Board correctly found that the word ‘Packard’ is
the dominant and distinguishing element of PACKARD TECHNOLOGIES.”).
77 Applicant seems to argue that, in its mark, JILLY refers to a specific TV personality /
influencer, see 6 TTABVUE 17, but the record contains no evidence of that.

Serial No. 90253914
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Thus, in both marks, the equivalent terms JILLY / JILLI, which are pronounced
the same, play a relatively large role in each mark’s overall commercial impression.78
The terms “THE” and “BOX” play lesser roles in the overall commercial impression
of Applicant’s mark, as does the term JEWELS in .
The nonliteral elements of do not do much to differentiate the
overall impressions of the marks. First, as noted, the application is for Applicant’s
mark in standard characters, which means it encompasses all typefaces, including
the precise typeface in the ’014 Registration. See, e.g., SquirtCo, 697 F.2d at 1041
(“the argument concerning a difference in type style is not viable where one party
asserts rights in no particular display”); Weider Publ’ns, LLC v. D&D Beauty Care
Co., No. 91199352, 2014 WL 343269, at *9 (TTAB 2014) (“because applicant applied
to register its mark in standard character format, its display is not limited to any
particular font style, size, or color, and we therefore must consider that applicant’s
mark might be used in any stylized display or color scheme, including one that is
similar or identical to any lettering style used by opposer”) (citations omitted).
Second, as between design and literal elements of a mark, usually the literal terms
contribute more to the mark’s overall commercial impression. See, e.g., Viterra, 671
F.3d at 1366; CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir. 1983). That
78 Applicant does not argue that the slightly different spellings matter and, indeed, concedes
that this is a similarity. 6 TTABVUE 18.

Serial No. 90253914
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general observation is especially applicable here, where the design elements of the
’014 Registration are neither large nor especially memorable.
Overall, we find the similarity in THE JILLY BOX (in standard characters) and
to outweigh the dissimilarities.
In contrast, as to the ’185 Registration, which stands in the way of registration for
Applicant’s Class 35 services, we find the marks less similar overall. JILLY’S MOM
MADE THAT is in standard characters, so there’s no design element to serve as a
possible means of distinction. But there are other differences. Whereas THE JILLY
BOX indicates that someone names JILLY is responsible for the subscription box
services, in JILLY’S MOM MADE THAT, JILLY is in adjectival form and modifies
the noun MOM. It’s also integrated into a sentence expressing the idea that someone
other than “JILLY” (i.e., Jilly’s mother) made or is in some way connected to the items
sold at retail. So it communicates a significantly different meaning than THE JILLY
BOX in the context of the respective services.79
79 In its arguments against similarity, Applicant repeatedly accuses the Examining
Attorney of “mutilating” the marks when comparing them. Trademark mutilation is a term
of art that refers to certain types of mismatches between a specimen and the mark depicted
in an application. See TMEP § 807.12(d) (May 2025). Applicant is not using the term in this
term-of-art sense, but rather to contend that the Examining Attorney did not compare the
two marks as wholes—a different concept. We see nothing indicating that the Examining
Attorney did not compare the marks as wholes. What Applicant sees as “mutilation” is the
Examining Attorney using a shorthand reference to refer to the Jilly/Jilli- components of the
marks at issue. As the Federal Circuit has noted, it’s perfectly fine to assess individual
components of marks (e.g., Jilly/Jilli-) to determine the relative contributions of the
individual elements of a mark to its overall commercial impression or to articulate
similarities or differences, so long as the ultimate comparison is of the marks as wholes. See,
e.g., Detroit Athl., 903 F.3d at 1305; In re Dobeckmun Co., 286 F.2d 187, 188 (CCPA 1960).

Serial No. 90253914
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Overall, we find the differences in the marks THE JILLY BOX and JILLY’S MOM
MADE THAT to outweigh the similarities.
E. Weighing the findings on the relevant factors together
Having made findings on each of the relevant likelihood-of-confusion factors, our
final step is to weigh the findings we have made on the relevant factors together to
determine if, on balance, they indicate that confusion is likely. See, e.g., Charger
Ventures, 64 F.4th at 1384.
Class 14. We found that the goods are in part identical because both the
application and the ’014 Registration list jewelry. This is an important factor and the
fact that the goods are in part identical weighs strongly in favor of a conclusion that
confusion is likely. See Federated Foods, 544 F.2d at 1103. The classes of customers
and trade channels overlap as well. These two factors also weigh in favor of a
conclusion that confusion is likely. As to the comparison of the marks, another key
factor, see id., we found that the marks’ similarities outweigh their differences,
resulting in a net gain addition to side of the scale favoring a likelihood of confusion.
And we further bear in mind that, “where, as here, the goods at issue are identical,
the degree of similarity necessary to support a conclusion of likely confusion declines.”
Viterra Inc., 671 F.3d at 1363 (cleaned up; citation omitted).
The only factor that weighs against likely confusion is our finding that, due to a
few third-party marks containing the term JILL in some form, the mark in the ’014
Registration has a modest degree of weakness.

Serial No. 90253914
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Weighing all these factors together, we think it clear that, on balance, the scales
favor a conclusion that confusion is likely. The mark in the ’014 Registration is simply
not weakened enough that a mark as close as Applicant’s is unlikely to cause
confusion as to source.
Class 35. Here, the balance of factors is significantly different. For one thing, the
services are not identical, but, rather, related. This is an important factor weighing
in favor of confusion being likely. But we note that a finding of relatedness weighs
less than a finding of identicality would have. The classes of customer and trade
channels overlap, so these factors also fall on the side of the scale favoring likely
confusion. But as the predecessor of our primary reviewing court has noted, these two
factors, as compared to the comparison of the marks and goods/services, “are areas of
peripheral inquiry.” Federated Foods, 544 F.2d at 1103. As to the sixth likelihood-of-
confusion factor, there is significantly more evidence of weakness as to marks
containing JILL or some variant in the field encompassed by the mark in the ’185
Registration than there is as to the Class 14 goods. And, comparing the marks—a key
factor—we found that Applicant’s mark THE JILLY BOX is more dissimilar than
similar to the mark in the ’185 Registration, JILLY’S MOM MADE THAT. That
finding amplifies the importance of the significant showing of weakness Applicant
made under the sixth factor. Weighing all the factors together, we think the
dissimilarities in the mark, combined with the evidence of weakness, together
outweigh the factors on the other side of the scale. On this record it is clear enough
to us that, as to Applicant’s Class 35 services, confusion is unlikely.

Serial No. 90253914
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Decision: We affirm the refusal as to the goods in Class 14. We reverse the refusal
as to the Class 35 services.