Harmonist Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: March 12, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Harmonist Inc.
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Serial No. 98456042
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Peter S. Sloane of Leason Ellis LLP, for Harmonist Inc.
Bridgett Smith, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____
Before Greenbaum, Dunn and English,
Administrative Trademark Judges.
Opinion by English, Administrative Trademark Judge:
Harmonist Inc. (“Applicant”) seeks registration on the Principal Register of the
standard-character mark OUD NEBULA (OUD disclaimed) for “perfumes; fragrances
and perfumery” in International Class 3.1
The Examining Attorney refused registration of Applicant’s mark under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion
1 Application Ser. No. 98456042 was filed on March 19, 2024, based on an allegation of an
intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b). On March 31, 2025, Applicant filed an Amendment to Allege Use under 15 U.S.C.
§ 1051(c), claiming December 2024 as the date of the first use and first use in commerce.

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with the standard-character mark NEBULA registered on the Principal Register for
“cosmetics, in particular airbrush make-up, and powders, make-up and make-up
removing preparations for stage, film and television in the nature of theatre
cosmetics, and cosmetics for other make-up artist work,” in International Class 3 (the
“Cited Registration” or “Cited Mark”).2
When the refusal was made final, Applicant requested reconsideration and
appealed. The request for reconsideration was denied and the appeal proceeded. The
appeal is fully briefed. We affirm the refusal to register.
I. Likelihood of Confusion Analysis
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
under Trademark Act Section 2(d) is based on an analysis of all of the probative facts
in evidence that are relevant to the factors bearing on likelihood of confusion. In re
E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited
in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures, 64 F.4th at 1381.
We consider each DuPont factor for which there is evidence and argument. See In
re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019); M2 Software, Inc. v. M2
2 Registration No. 4910887 issued on March 8, 2016. Registrant’s Section 71 declaration, filed
February 11, 2026, is pending.

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Commc’ns., Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., Opp. No. 91194974, 2015 WL 1646447, at *8 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”). “The weight given to each factor depends on
the circumstances of each case.” In re Charger Ventures, 64 F.4th at 1381; In re Shell
Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“[T]he various evidentiary factors may
play more or less weighty roles in any particular determination.”). Moreover, “each
case must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973).
The similarities and differences between the marks and goods are key
considerations in any likelihood of confusion analysis. See In re Chatam Int’l Inc., 380
F.3d 1340, 1341-42 (Fed. Cir. 2004); 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.”); see also In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (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, 1164 (Fed. Cir. 2002)). We consider these two
factors and other relevant DuPont factors below.

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A. Similarity or Dissimilarity of the Goods
Under the second DuPont factor, we consider “[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. We must base our comparisons under the second DuPont factor on
the goods identified in the Cited Registration and the involved application. See, e.g.,
In re Charger Ventures, 64 F.4th at 1383 (“The relevant inquiry in an ex parte
proceeding focuses on the goods and services described in the application and
registration.”) (emphasis omitted). “[I]t is sufficient for finding a likelihood of
confusion if relatedness is established for any item encompassed by the identification
of goods within a particular class in the application.” In re Aquamar, Inc., No.
85861533, 2015 WL 4269973, at *4, n.5 (TTAB 2015) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981)).
For ease of reference we set out the relevant goods below.
Applicant’s Goods: perfumes; fragrances and perfumery
Registrant’s Goods: Cosmetics, in particular airbrush make-up, and
powders, make-up and make-up removing preparations for stage, film
and television in the nature of theatre cosmetics, and cosmetics for other
make-up artist work
We start by addressing Applicant’s argument that “the Examining Attorney has
treated the cited registration as if it covers cosmetics in general rather than cosmetics
limited to theatre cosmetics and cosmetics for other make-up artist work.”3 We find
3 Appeal Brief, 6 TTABVUE 5.
Citations to the appeal record are to TTABVUE, the Board’s online docketing system. The
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.

Serial No. 98456042
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the most reasonable reading of the identification of goods in the Cited Registration is
that it consists of two separate clauses, covering two different types of “cosmetics”:
(1) “cosmetics, in particular airbrush make-up, and powders, make-up and make-
up removing preparations for stage, film and television in the nature of theatre
cosmetics”; and
(2) “cosmetics for other make-up artist work.”
In re OSF Healthcare Sys., No. 8706809, 2023 WL 6140427, at *5 (TTAB 2023) (“[W]e
must construe the [goods] identified in the Cited Registration as broadly as
reasonably possible to include all [goods] of the nature and type described therein”
and “we must resolve any ambiguities regarding [the identification of goods] in favor
of the cited registrant given the presumptions afforded the registration under Section
7(b) of the Trademark Act[.]”) (cleaned up) (quoting In re Solid State Design Inc., No.
87269041, 2018 WL 287909, at *6 (TTAB 2018)).
We find that the limiting language in the second clause, namely, “for other make-
up artist work,” is a limitation on the consumers for the goods and not on the types
of cosmetics that Registrant offers. “Make-up artist work” includes more than make-
up artists working in stage, film and television; it encompasses all types of make-up
artist work, including for events like weddings, parties and photo shoots, as well as
make-up artists providing their services at cosmetic counters in retail stores. The
record does not support that cosmetics for make-up artist work in weddings and at
make-up counters, for example, are of any particular nature. We thus find that the
Citations to the application file are to the USPTO’s Trademark Status & Document Retrieval
(“TSDR”) online database, by page number, in the downloadable .pdf format.

Serial No. 98456042
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“cosmetics” in the second clause in the identification are not limited as to kind or type,
and therefore, encompass all cosmetics that make-up artists may use.
“Cosmetics” is a broad identification that includes perfumes, identified in the
involved application. See USPTO’s Acceptable Identification of Goods and Services
Manual (ID Manual) (listing “cosmetics in general, including perfumes” as an
acceptable identification of goods in Class 3);4 see also In re Hughes Furniture Indus.,
No. 85627379, 2015 WL 1734918, at *3 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”). Because perfume is a type of “cosmetic,” and
“cosmetics” are covered by Registrant’s identification, there is overlap in Applicant’s
and Registrant’s goods; the goods are in-part legally identical.
Based on the record, we also find that perfume and make-up (another type of
cosmetic) are complementary products, marketed together,5 sold together in sets,6
and often applied at the same time to enhance beauty.7 Complementary or companion
4 See also September 30, 2024 Office action, TSDR 11, 19 (two third-party use-based
registrations identifying “cosmetics in general, including perfumes”).
5 February 5, 2025 Final Office action, TSDR 6 (“This Lunar New Year, discover a selection
of three Dior fragrance and make-up products, the ideal gift for your loved ones or
yourself[.]”); id. at 29 (Estée Lauder describing its “best-selling” and “most popular beauty
products” as its “tried-and-true, including innovative skincare, high-performance make-up
and luxurious fragrances” and recommending gifts for “beauty lovers” including “a gorgeous
shade of lipstick, a top-rated serum or moisturizer for their skin type, or a best-selling
fragrance”); id. at 35 (“At Lancôme, we believe that Happiness is a powerful source of beauty.
Our mission is to inspire everyone to shine from the inside out and to bring French beauty
all around the world, from make-up, perfume, and skincare products to lovingly curated gifts
& sets”).
6 Id. at TSDR 6-7, 14 (Dior and Estée Lauder selling perfume and other cosmetics (make-up
and cosmetic skin creams) together as a set).
7 We take judicial notice that “beauty” is defined as “the quality or group of qualities in a
person or thing that gives pleasure to the senses or the mind.” MERRIAM-WEBSTER, merriam-

Serial No. 98456042
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purchase or use has long been recognized as a relevant consideration in determining
a likelihood of confusion. See In re Ox Paperboard, LLC, Ser. No. 87847482, 2020 WL
4350517, at *7 (TTAB 2020) (evidence that goods used together demonstrated that
goods were related and complementary in nature); Polo Fashions, Inc. v. La Loren,
Inc., 1984 WL 63165, at *3 (TTAB 1984) (no proceeding number) (complementary
goods related).
Further, the Examining Attorney introduced: (1) four examples of third-parties
selling both perfume and other cosmetics under the same mark;8 and (2) six third-
party, use-based registrations identifying both perfume and cosmetics.9 This evidence
corroborates our finding that Applicant’s and Registrant’s goods are complementary.
See, e.g., In re Embiid, No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021)
(“Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant goods are advertised together
or sold by the same manufacturer or dealer; or copies of prior use-based registrations
of the same mark for both applicant’s goods and the goods listed in the cited
registration.”).
webster.com/dictionary/ beauty (last visited March 10, 2026). “The Board may take judicial
notice of dictionary definitions, including online dictionaries which exist in printed format or
have fixed regular editions.” In re Nextgen Mgmt., LLC, Ser. No. 88098031, 2023 WL 111145,
at *4 n.5 (TTAB 2023).
8 February 5, 2025 Final Office action, TSDR 6-40 (Dior, Estée Lauder, Lancôme, Elizabeth
Arden).
9 September 30, 2024 Office action, TSDR 11-19.

Serial No. 98456042
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B. Similarity or Dissimilarity of the Trade Channels and Classes of
Consumers, Consumer Sophistication and Purchasing
Conditions
Under the third DuPont factor, we consider “[t]he similarity or dissimilarity of
established, likely-to-continue trade channels” and under the fourth DuPont factor,
we consider “[t]he conditions under which and buyers to whom sales are made, i. e.
“impulse” vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361. We must
base our comparisons under these DuPont factors on the goods identified in the
involved application and Cited Registration. Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1323-25 (Fed. Cir. 2014) (consumer sophistication must be
based on identified goods and services not on current use); Sabhnani v. Mirage
Brands, LLC, No. 92068086, 2021 WL 6072822, at *10 (TTAB 2021) (“[A]s with the
relatedness of the goods, the similarity or dissimilarity of the channels of trade must
be determined based on the identifications of goods in the parties’ registrations[.]”).
As we did under the second DuPont factor, we focus our analysis under the third and
fourth DuPont factors on “cosmetics for other make-up artist work” in the Cited
Registration.
Applicant argues that “[a] plain understanding of the language [in the Cited
Registration] naturally leads to the conclusion that [Registrant’s goods] are
purchased and used by professionals for their work and [Applicant’s goods] are
purchased by individuals for personal use.”10 We agree that the language “for other
make-up artist work” in the Cited Registration limits the purchasers of Registrant’s
10 Appeal Brief, 6 TTABVUE 5.

Serial No. 98456042
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“cosmetics” to make-up artists for use in their work. Applicant’s identification,
however, does not limit consumers of Applicant’s perfume and fragrances to
“individuals for personal use”; there are no consumer or trade channel restrictions in
Applicant’s application. We must therefore presume that Applicant’s perfume and
fragrances are “marketed through all normal trade channels, and … offered to all
normal customers therefor.” In re FCA US LLC, No. 85650654, 2018 WL 1756431, at
*4 (TTAB 2018).
Perfume and fragrances are the type of product purchased by consumers seeking
to enhance beauty. It is foreseeable that make-up artists may purchase make-up and
perfume together given the evidence showing that these types of goods are marketed,
packaged, and sold together in sets. The normal classes of consumers for perfume
thus include make-up artists – in both their professional and personal capacity – the
same consumers who purchase Registrant’s goods. There is consumer overlap.
The limitation on consumers for Registrant’s cosmetics (i.e. make-up artists),
theoretically could result in a trade channel limitation but the record does not support
that make-up artists exclusively purchase cosmetics for their work from a specific
type of shop or through specific outlets. Other than Registrant’s specimen of use,
showing sales of Registrant’s product on a retail website, there is no evidence in the
record regarding the trade channels through which “cosmetics for make-up artist
work” are sold.11
11 April 25, 2025 Request for Reconsideration, TSDR 14.

Serial No. 98456042
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Because neither the Cited Registration nor Applicant’s application includes any
trade channel restrictions, we presume that Applicant’s and Registrant’s in-part
identical goods are sold through overlapping trade channels. In re Viterra Inc., 671
F.3d 1358, 1362 (Fed. Cir. 2012) (absent a trade channel restriction, identical goods
presumed to travel in same trade channels). The record further shows actual overlap
in trade channels as cosmetics, including perfumes, are sold through retail beauty
stores.12
We turn now to the sophistication of the purchasers and purchasing conditions.
Purchaser sophistication and care in making a purchase may tend to minimize
likelihood of confusion while impulse purchases of inexpensive items may tend to
have the opposite effect. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005). We must base our decision on
the least sophisticated purchasers of the products. Stone Lion, 746 F.3d at 1325.
Applicant asserts that make-up professionals who purchase Registrant’s
cosmetics are discriminating purchasers.13 To support this position, Applicant
submitted a website printout describing the Make-Up Artists & Hair Stylists Guild
as a union comprised of artistic professionals who “have created the iconic look for
Hollywood’s most memorable characters and stars,” and who “have influenced major
trends in the consumer industry.”14 This evidence suggests that members of the guild
12 February 5, 2025 Final Office action, TSDR 6-40.
13 Appeal Brief, 6 TTABVUE 8.
14 April 25, 2025 Request for Reconsideration, TSDR 21.

Serial No. 98456042
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are sophisticated purchasers in their field, but the printout makes clear that
membership in the guild is exclusive and does not include all make-up artists working
in the fields of theater, television and film, let alone all make-up artists generally:
Membership in the Make-up Artists and Hair Stylists Guild is attained
through hard work, perseverance and passion. There are no shortcuts,
there are no apprenticeship programs or internships. The competition is
very stiff, but membership is a goal worth achieving.15
Moreover, as discussed, Registrant’s identification of goods specifying “cosmetics
for make-up artist work” is not limited to make-up artists working in theater, film or
television, but is much broader encompassing all make-up artist work, including
those working for events like weddings, as well as make-up artists providing their
services at cosmetic counters in retail stores.
In arguing that the relevant purchasers are sophisticated, Applicant also points
to an Office action response that Registrant filed in connection with an unrelated
application in which Registrant wrote:16
[P]rofessional makeup artists in the film, theater and television
industries … are knowledgeable and would certainly make careful
inquiry into the quality and cost of the product they are buying and
using.
As explained, Registrant’s “cosmetics for make-up artist work” is broader than
make-up artists in “the film, theater and television industries,” and we cannot read
any such limitation into the identification. In re Thor Tech, Inc., No. 78634024, 2009
15 Id.
16 December 27, 2024 Office action response, at TSDR 11. The Office action response does not
identify Registrant as the responding entity, but the Examining Attorney accepts in her brief
that this filing was made by Registrant so we do too.

Serial No. 98456042
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WL 1098997, at *5 (“We have no authority to read any restrictions or limitations into
the registrant’s description of goods.”). Still, we consider Registrant’s statement as
“illuminative of shade and tone in the total picture.” Stone Lion, 746 F.3d at 1322 (“A
party’s prior arguments may be considered as ‘illuminative of shade and tone in the
total picture,’ but do not alter the Board’s obligation to reach its own conclusion on
the record.”) (quoting Interstate Brands Corp. v Celestial Seasonings, Inc., 576 F.2d
926, 929 (CCPA 1978)). We also agree that based on the nature of their work –
applying make-up to clients for events such as weddings, photoshoots and
performances – make-up artists generally are likely to exercise care in purchasing
cosmetics for use in their jobs. It is foreseeable that they may also exercise some
degree of care in purchasing cosmetics, including perfume, for their personal use.
Applicant asserts that perfume is also purchased by sophisticated consumers.
Specifically, Applicant argues that perfume is expensive,17 and that non-binding
“cases have made it clear that purchasers of perfumes are also generally sophisticated
and discriminating.”18 Prior decisions that are not binding on the Board and that were
decided on different records are not particularly persuasive. In re Embiid, 2021 WL
2285576, at *12 (“We have previously recognized the limited utility of reliance, in lieu
of supporting evidence, on past decisions in which the Board has or has not found
various clothing items to be related.”). In addition, although some perfumes are
relatively expensive, retailing as high as $100-300, the record shows perfume listed
17 Reply Brief, 9 TTABVUE 7 (the record is “replete with expensive perfumes”).
18 Appeal Brief, 6 TTABVUE 8 (citing cases from the United States District Court for the
Southern District of New York and the United States Court of Appeals for the Fifth Circuit).

Serial No. 98456042
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for sale as low as $42.19 We find that the least sophisticated purchaser would not be
likely to exercise a heightened degree of care when purchasing perfume.
In sum, we find that make-up artists – a relevant consumer group for both
Applicant’s perfume and Registrant’s cosmetics – are likely to exercise some care in
purchasing cosmetics, including perfume. Still, because make-up and perfume are
sold by the same entities under the same mark, sometimes packaged together as a
set, make-up artists familiar with Registrant’s NEBULA cosmetics who encounter
Applicant’s OUD NEBULA perfume and fragrances may mistakenly believe that
Registrant is expanding from make-up into a line of perfumes, and expanding from
cosmetics for make-up artist work to cosmetics for the general public. See, e.g., In re
Charger Ventures LLC, 64 F.4th at 1383 (“[C]areful or sophisticated consumers are
not immune from source confusion.”); In re Research and Trading Corp., 793 F.2d
1276, 1279 (“That the relevant class of buyers may exercise care does not necessarily
impose on that class the responsibility of distinguishing between similar trademarks
for similar goods.”).
Such circumstances were not present in the case on which Applicant relies in
arguing the sophistication of the purchasers, Elec. Design & Sales Inc. v. Elec. Data
Sys. Corp., 954 F.2d 713 (Fed. Cir. 1992).20 Further, in Elec. Design & Sales, there
19 February 5, 2025 Final Office action, TSDR 33.
20 Appeal Brief, 6 TTABVUE 9 (“The Court of Appeals for the Federal Circuit has cautioned
the Patent and Trademark Office not to overlook the great importance of consumer
sophistication in deciding whether confusion is likely”); Reply Brief, 9 TTABVUE 7
(characterizing “the sophistication and discrimination of customers [as] an extremely
important likelihood of confusion factor”).

Serial No. 98456042
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was little overlap in relevant consumers and prospective consumers. Id. at 718.
(“Even assuming, arguendo, that the Board was correct in finding sufficient
relatedness of the goods and services, the relevant persons-potential or actual
purchasers-are nevertheless mostly different and in any event are sophisticated
enough that the likelihood of confusion remains remote.”).
C. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” DuPont, 476 F.2d at 1361. “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, No.
87075988, 2018 WL 2734893, at *5 (TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed.
Cir. 2019).
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion, 746 F.3d at 1321; Franklin Mint Corp. v.
Master Mfg. Co., 667 F.2d 1005, 1007(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.”). Moreover, the proper test regarding
similarity “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.” Cai v. Diamond Hong, 901 F.3d 1367, 1374 (Fed. Cir. 2018) (quoting

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Coach Servs., 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation marks and
citation omitted)).
The marks “must be considered … in light of the fallibility of memory ….” In re St.
Helena Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014). (citation omitted). The focus is on
the recollection of an ordinary consumer, who normally retains a general rather than
specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438
F.2d 1005, 1007 (CCPA 1971); L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL
1267956, at *5 (TTAB 2004); Sealed Air Corp. v. Scott Paper Co., 1975 WL 20752, at
*3 (TTAB 1975) (proceeding number not available).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d at 752. Because Applicant’s and Registrant’s goods are in-part legally
identical, “the degree of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate v. Century Life of Am., 970 F.2d 874, 877
(Fed. Cir. 1992)); see also Coach Servs., 668 F.3d at 1368 (“In this fact-specific inquiry,
if the parties’ goods are closely related, a lesser degree of similarity between the
marks may be sufficient to give rise to a likelihood of confusion.”).
The marks are visually different to the extent Applicant’s mark OUD NEBULA
starts with the word OUD, but overall we find the visual similarities significant. The
word OUD is a short, three-letter word that (as discussed below) is merely descriptive
of Applicant’s goods. NEBULA is the longer word of the two, and it is inherently
distinctive for Applicant’s perfume and fragrances. For these reasons, we find that
consumers seeing Applicant’s mark will be visually drawn to the second term

Serial No. 98456042
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NEBULA, which is the whole of Registrant’s mark. Often there is a likelihood for
confusion where, as here, one marks incorporates the other in its entirety. Hunter
Indus., Inc. v. Toro Co., No. 91203612, 2014 WL 1649332, at *11 (TTAB 2014)
(“Likelihood of confusion often has been found where the entirety of one mark is
incorporated within another.”).
Turning to sound, again, the presence of the first word OUD in Applicant’s mark
is a distinction, but it is a single-syllable word with less aural significance than the
three-syllable word NEBULA, which is the entirety of the Cited Mark. We find the
marks are similar in sound.
With respect to connotation and commercial impression, Applicant argues that “in
the context of professional makeup covered by the Cited Registration, the single word
mark NEBULA suggests the shimmery, luminescent makeup colors associated with
a nebula, while “the presence of ‘OUD’ in Applicant’s two word mark OUD NEBULA
reinforces its connotation as the name of a fragrance.”21 To this end, Applicant
disclaimed the word OUD pursuant to the Examining Attorney’s requirement
“because it is merely descriptive of a feature of applicant’s goods.”22 See, e.g., In re Ye
Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731, at *4 (TTAB 2025)
21 Reply Brief, 9 TTABVUE 8.
22 September 30, 2024 Office action, TSDR 4. In support of the disclaimer requirement, the
Examining Attorney attached a blog post stating:
Surely you have heard of Oud in recent years if you are a lover of exclusive
perfumery, but most likely you do not know why this ingredient is so highly
valued by perfumers. Oud means wood in Arabic, although it is more than just
a piece of tree. It is known as black gold and for perfumers it is a unique
ingredient with which to achieve very special aromas. Id. at 7.

Serial No. 98456042
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(“Registrant entered a disclaimer of GASPARILLA, an implicit concession that the
term is descriptive.”). In its reply brief, Applicant further acknowledges “the
descriptive nature of the term ‘OUD’.”23
We acknowledge that one meaning and commercial impression of the Cited Mark
NEBULA for Registrant’s goods may “suggest[] the shimmery, luminescent makeup
colors associated with nebula” as “many nebulae are visible due to fluorescence
caused by embedded hot stars….”24 But the identification of goods in the Cited
Registration and Registrant’s specimen of use support another likely meaning and
commercial impression of the Cited Mark for the identified goods. Registrant’s
identification of goods includes “airbrush make-up,” and the specimen promotes
Registrant’s cosmetics as a product that “can be applied using a spray gun or brush.”
Airbrushing25 and spray-gun application would be likely to produce a mist-like cloud.
Thus, another consequential meaning and commercial impression of Registrant’s
NEBULA mark is of a spray cosmetic that produces a cloud similar to a nebula. In re
White Swan Ltd., Ser. No. 73617169, 1988 WL 252416, at *2 (TTAB 1988) (“[I]n the
context of likelihood of confusion, the fact that a word mark will be understood by
23 Reply Brief, 9 TTABVUE 9.
24 April 25, 2025 Request for Reconsideration, TSDR 7 (printout from Wikipedia for the entry
“Nebula.”). The Examining Attorney did not introduce any evidence to rebut the information
in the Wikipedia entry. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) (2025) (“[I]n the last several years excerpts from Wikipedia have frequently been
submitted during the prosecution of an application and have rarely been rebutted by an
updated excerpt.”).
25 We take judicial notice that the noun “airbrush” means “an atomizer for applying by
compressed air a fine spray (as of paint or liquid color).” MERRIAM-WEBSTER, merriam-
webster.com/dictionary/airbrush (last visited March 5, 2026).

Serial No. 98456042
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some individuals in a manner such that confusion with a prior mark is likely and by
other individuals in a manner such that confusion is unlikely, will generally still
result in a finding of likelihood of confusion, provided that the size of the group of
individuals who are likely to be confused is not inconsequential.”). Applicant’s mark
has a similar meaning and commercial impression as it is likely to suggest a perfume
spray that produces a scented nebula-like cloud.
Given the similarities between the marks, as described above, consumers may
perceive Applicant’s mark OUD NEBULA as a variation of Registrant’s NEBULA
mark identifying a companion line of products or may otherwise mistakenly believe
that Applicant’s goods are associated with or sponsored by Registrant. In re Mighty
Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010) (finding ML likely to be perceived as
a shortened version of ML MARK LEES when used on the same or closely related
skin care products); In re Great Lakes Canning, Inc., 1985 WL 71929, at *3 (TTAB
1985) (proceeding number unavailable) (“Even those purchasers who are fully aware
of the specific differences between the marks may well believe, because of the
similarities between them, that the two marks are simply variants of one another,
used by a single producer to identify and distinguish companion lines of products.”).
When we consider the marks in their entireties, we find that the marks are similar
in appearance, sound, connotation and commercial impression.

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II. Conclusion
As a final step, we “weigh the DuPont factors used in [our] analysis and explain
the results of that weighing.” In re Charger Ventures, 64 F.4th at 1384 (emphasis
omitted).
In this appeal, the goods, trade channels and consumers overlap. We thus find
that the corresponding DuPont factors weigh heavily in favor of finding a likelihood
of confusion. The marks are also similar in appearance, sound, connotation and
commercial impression. The first DuPont factor also weighs in favor of finding a
likelihood of confusion.
The only remaining applicable factor is the sophistication of relevant purchasers
and purchasing conditions under the fourth DuPont factor. Applicant urges us to find
that the sophistication of the purchasers is entitled to heavy weight in our analysis,26
but we find this factor, at most, weighs only slightly against finding a likelihood of
confusion.
On balance, we find that the sophistication of consumers is outweighed by the
other relevant DuPont factors, which all favor a likelihood of confusion. We therefore
conclude that Applicant’s standard-character mark OUD NEBULA for “perfumes;
fragrances and perfumery” is likely to cause confusion with the standard-character
mark NEBULA for “cosmetics, in particular airbrush make-up, and powders, make-
up and make-up removing preparations for stage, film and television in the nature of
theatre cosmetics, and cosmetics for other make-up artist work.”
26 Appeal Brief, 6 TTABVUE 9.

Serial No. 98456042
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Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.