Heretic Beauty Inc.

Mailed: April 22, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Heretic Beauty Inc.
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Serial No. 98831998
————
Valerie Greenberg of the Greenberg Law Firm,
for Heretic Beauty Inc.
Amit Shoor, Trademark Examining Attorney, Law Office 117,
Cynthia Tripi, Managing Attorney.
————
Before Greenbaum, Pologeorgis, and Lebow,
Administrative Trademark Judges.
Opinion by Pologeorgis, Administrative Trademark Judge:
Heretic Beauty Inc. (“Applicant”) seeks registration on the Principal Register of
the standard character mark EAU DE MACABRE for “Fragrances and perfumery”
in International Class 3.1
1 Application Serial No. 98831998, filed on October 31, 2024, based on an allegation of use in
commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming October 31,
2024 as both the date of first use and the date of first use in commerce. The application
includes the following partial translation: “The English translation of EAU DE in the mark
is WATER OF.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98831998
2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the following two marks, both registered on the Principal
Register and owned by different Registrants:
• Reg. No. 6110672 – for:
Hats; Jackets; Long-sleeved shirts; Pants; Shorts; Socks; Sweaters; Athletic
shorts; Athletic sweaters; Baseball caps and hats; Bomber jackets; Camouflage
jackets; Camouflage pants; Crew neck sweaters; Fashion hats; Fleece shorts;
Graphic T-shirts; Gym shorts; Heavy jackets; Light-reflecting jackets; Lounge
pants; Men's socks; Outer jackets; Rainproof jackets; Reversible jackets; Short-
sleeved or long-sleeved t-shirts; Sports jackets; Sports caps and hats; Sweat
pants; Sweat shorts; Walking shorts; Wind resistant jackets, in International
Class 25;2 and
• Reg. No. 6278850 – MACABRE (in standard characters) for “candles” in
International Class 4.3
When the refusal was made final, Applicant appealed. Both Applicant and the
Examining Attorney have filed briefs. For the reasons explained below, we affirm the
Section 2(d) refusal to register.4
I. Likelihood of Confusion
Section 2(d) of 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
2 Issued July 28, 2020 and owned by Albert J. De La Garza, an individual.
3 Issued February 23, 2021 and owned by Candace Mass, an individual.
4 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.

Serial No. 98831998
3
goods of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d).
See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Our
determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a 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 Indus., Inc., 575 U.S. 138, 144 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311 (Fed. Cir. 2003).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (quoting Tiger Lily Ventures Ltd. v. Barclays
Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also In re Charger Ventures, 64 F.4th
at 1381. While we consider each DuPont factor for which there is evidence and
argument, In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key
considerations are the similarities between the marks and the similarities between
the goods. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)).
A. Similarity 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.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476 F.2d at 1361). “Similarity

Serial No. 98831998
4
in any one of these elements may be sufficient to find the marks confusingly similar.”
In re Inn at St. John’s, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018) (quoting
In re Davia, No. 85497617, 2014 WL 2531200, at *2 (TTAB 2014)).
The proper test for 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, Inc., 901 F.3d 1367, 1373
(Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). The focus is
on the recollection of the average customer, who retains a general rather than specific
impression of a trademark. In re St. Julian Wine Co., No. 87834973, 2020 WL
2788005, at *6 (TTAB 2020). Consumers may not necessarily encounter the marks in
close proximity and must rely upon their recollections thereof over time. In re Mucky
Duck Mustard, No. 73603019, 1988 WL 252484, at *1 (TTAB 1988).
Here, Applicant’s mark is EAU DE MACABRE in standard characters. The cited
marks are MACABRE, also in standard characters, and .
The marks are similar in appearance, sound, connotation, and overall commercial
impression because the entirety of the single term comprising the cited marks is
encompassed by Applicant’s mark; in such cases, confusing similarity has often been
found. See e.g., See In re Mighty Leaf Tea, 601 F.3d 1342, 1347-48 (Fed. Cir. 2010)
(ML similar to ML MARK LEES); Coca-Cola Bottling Co. v. Jos. E. Seagram & Sons,
Inc., 526 F.2d 556, 557 (CCPA 1975) (BENGAL and BENGAL LANCER and design

Serial No. 98831998
5
found to be similar); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 324-25 (CCPA
1967) (THE LILLY similar to LILLI ANN); In re U.S. Shoe Corp., No. 73444699, 1985
WL 72046, at *3 (TTAB 1985) (CAREER IMAGE similar to CREST CAREER
IMAGES).
As to connotation, we take judicial notice of the definition of the word MACABRE
which is defined as “dwelling on gruesome” or “tending to produce horror to the
beholder.”5 Thus, the marks at issue have similar dark connotations based on the
definition of MACABRE.
In countering the refusal, Applicant argues that the addition of the wording “EAU
DE” in its mark sufficiently differentiates the marks at issue.6 In support of its
argument, Applicant submitted status and title copies of the following two pairs of
registrations, owned by different registrants, that co-exist on the Principal Register:7
Pair No. 1
Reg. No. 2650625 – EAU DE LUNE (standard characters) for “fragrances,
namely, perfume” in Class 3.
Reg. No. 6761638 – LUNE (standard characters) for goods, including, “cosmetic
preparations for skin care; face and body lotions; facial cleansers.
5 See www.merriam-webster.com/dictionary/macabre (accessed April 20, 2026). “The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format.” Performance Open Wheel Racing, Inc. v. U.S. Auto Club Inc., No. 91229632,
2019 WL 2404075, at *5 n.34 (TTAB 2019).
6 Applicant’s Appeal Brief, pp. 5-6, 6 TTABVUE 6-7.
7 Applicant’s June 29, 29025 Response to Office Action, TSDR pp. 6-13

Serial No. 98831998
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Pair No. 2
Reg. No. 5910559 – EAU DE JUICE (standard characters) for goods, including,
“perfume, eau de perfume, eau de toilette, eau de cologne, fragranced body care
preparations, namely, body lotions, bath gels, shower gels, body scrubs, body
powders” in Class 3.
Reg. No. 2650368 – JUICE (standard characters) for “skin and body care
products, namely, cleansers, toners, scrubs, lotions, creams, bath gels, body
lotions, body sprays, bar soaps, cosmetics, aromatic oils” in Class 3.
We are not persuaded by Applicant’s argument. While prospective consumers are
more likely to focus on the first portion or word in a trademark, see Palm Bay, 396
F.3d at 1372-73, likelihood of confusion is not necessarily avoided between otherwise
confusingly similar marks merely by adding other distinctive matter. If an important
portion of the marks is the same, as is the case here with the dominant wording
MACABRE, then the marks may be confusingly similar notwithstanding peripheral
differences. See, e.g., Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317,
1321-22 (Fed. Cir. 2014) (affirming Board's finding that confusion likely where
applicant's mark STONE LION CAPITAL incorporated the entirety of the registered
marks LION CAPITAL and LION); Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 1266 (Fed. Cir. 2002) (finding that, even though applicant’s mark
PACKARD TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not
incorporate every feature of opposer’s HEWLETT PACKARD marks, a similar overall
commercial impression is created); In re U.S. Shoe Corp., No. 73444699, 1985 WL
72046, at *3 (TTAB 1985) (holding CAREER IMAGE (stylized) for clothing and retail
women's clothing store services, and CREST CAREER IMAGES (stylized) for
uniforms, likely to cause confusion, noting that CAREER IMAGE would be perceived

Serial No. 98831998
7
by consumers as a shortened form of CREST CAREER IMAGES). This especially
holds true here because, although Applicant’s mark begins with “EAU DE,” which is
absent from both of the cited marks, the wording EAU DE merely modifies the term
MACABRE and therefore is ancillary to the connotation and commercial impression
created by the dominant term MACABRE.
As for the two pairs of third-party registrations submitted by Applicant, the
existence on the register of other seemingly similar marks does not provide a basis
for registrability of Applicant’s applied-for mark. See Sock It To Me, Inc. v. Aiping
Fan, No. 91230554, 2020 WL 3027605, at *12 (TTAB 2020) (quoting AMF Inc. v. Am.
Leisure Prods., Inc.,474 F.2d 1403, 1406, (CCPA 1973)). Indeed, prior decisions and
actions of other trademark examining attorneys in applications for other marks have
little evidentiary value and are not binding upon the USPTO or the Board. In re
Brunetti, 151 F.4th 1367, 1377 (Fed. Cir. 2025) (“We have recognized that a decision
of the Board may not be challenged on the ground that examining attorneys in other
cases may have made erroneous rulings.”); In re USA Warriors Ice Hockey Program,
No. 86489116, 2017 WL 2572815, at *4 n.10 (TTAB 2017). Each case is decided on its
own facts, and each mark stands on its own merits. In re Cordua Rests., Inc., 823 F.3d
594, 600 (Fed. Cir. 2016) (citing In re Shinnecock Smoke Shop, 571 F.3d 1171, 1174,
(Fed. Cir. 2009)).
Lastly, Applicant’s mark is in standard-character format. Thus, Applicant could
display its mark in the same font style, size or color identical or similar to the cited
mark , thereby heightening the likelihood of confusion. In re

Serial No. 98831998
8
Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *5 (TTAB 2018); In
re Strategic Partners Inc., No. 77903451, 2012 WL 1267930, at *3 (TTAB 2012).
While we acknowledge the minor difference between the marks in terms of
appearance and sound when viewed on a side-by-side basis, that is not the test. When
considered in their entireties, and against the backdrop of fallibility of memory,
Applicant’s mark EAU DE MACABRE and the cited registered marks MACABRE
(in standard characters) and are similar in appearance,
sound and connotation, and convey a similar overall commercial impression in light
of the shared dominant term MACABRE, notwithstanding the inclusion of the
wording “EAU DE” in Applicant’s mark.
Accordingly, we find that the first DuPont factor favors a finding of likelihood of
confusion.
B. Similarity of the Goods
We next turn to the comparison of the goods, the second DuPont factor. In making
our determination regarding the similarity of the goods, we must look to the goods as
identified in Applicant’s application and in the cited registrations. See Stone Lion,
746 F.3d at 1323 (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d
937, 942 (Fed. Cir. 1990) (“The authority is legion that the question of registrability
of an applicant’s mark must be decided on the basis of the identification of goods set
forth in the application regardless of what the record may reveal as to the particular
nature of an applicant’s goods, the particular channels of trade or the class of
purchasers to which the sales of goods are directed.”).

Serial No. 98831998
9
It is settled that it is not necessary that the respective goods be identical or even
competitive in order to find that they are related for purposes of our likelihood of
confusion analysis. The respective goods need only be “related in some manner and/or
if the circumstances surrounding their marketing [be] such that they could give rise
to the mistaken belief that goods emanate from the same source.” Coach Servs. Inc.,
668 F.3d at 1369 (quoting 7-Eleven Inc. v. Wechsler, No. 91117739, 2007 WL 1431084,
at *10 (TTAB 2007)).
The issue is not whether consumers would confuse Applicant’s goods with
Registrant’s goods, but rather whether there is a likelihood of confusion as to the
source of these goods. L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *6
(TTAB 2012); In re Rexel Inc., No. 24142), 1984 WL 63591, at *1 (TTAB 1984).
Moreover, registration must be refused if Applicant’s mark for any of its identified
goods is likely to cause confusion with Registrants’ marks for any of their listed goods.
See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983) (holding that a
single good from among several may sustain a finding of likelihood of confusion);
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336-37 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with respect to
any item that comes within the identification of goods or services in the application).
To reiterate, Applicant’s goods are “Fragrances and perfumery” in Class 3. Cited
Registration No. 6110672 lists various clothing items in Class 25. Cited Registration
No. 6278850 lists “candles” in Class 4.
In support of the refusal, the Examining Attorney made of record numerous third-

Serial No. 98831998
10
party, use-based registrations, each identifying, under a single mark, both
Applicant’s goods and at least one of the Registrants’ goods. Although the
registrations are not evidence that the marks shown therein are in use or that the
public is familiar with them, they nonetheless have probative value to the extent that
they serve to suggest that the goods listed therein are of a kind which may emanate
from a single source under a single mark. See In re Albert Trostel & Sons Co., No.
74186695, 1993 WL 596274, at *3 (TTAB 1993); In re Mucky Duck Mustard Co. Inc.,
No. 603019, 1988 WL 252484, at *3 n.6 (TTAB 1988). The third-party registrations
are identified below:8
• VERA ORGANIX (ORGANICS disclaimed) (Reg. No. 6472633) for
goods including “perfume” in Class 3 and “candles made in whole or
in part of organic materials” in Class 4.
• (THE BRAND disclaimed) (Reg. No. 6642442)
for goods including “perfumes” in Class 3 and various clothing items
in Class 25.
• WELCOME TO A BETTER SMELLING LIFE (Reg. No. 7657439) for
goods including “cologne; fragrances and perfumes” in Class 3 and
“candles” in Class 4.
• VICTORY REY (Reg. No. 75258173) for “Perfume oils; Essential oils
for use in the manufacture of scented products” in Class 3 and
“candles; oils for lighting” in Class 4.
• L’AMBITION DE CERCLE INTÉRIEUR (Reg. No. 7580481) for
“perfume” in Class 3 and “clothing, namely, shirts and pants” in
Class 25.
8 May 8, 2025 Office Action, TSDR pp. 7-31.

Serial No. 98831998
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• (Reg. No. 3109605) for “cosmetics and perfumes” in Class 3
and various clothing items in Class 25.
• WAKEHEART (Reg. No. 5946093) for “perfume” in Class 3 and
various clothing items in Class 25.
• YOU ARE THE LUXURY! (Reg. No. 769756) for goods in Class 3
including “perfume.”
• NAYKED APPAREL (Reg. No. 6841636) for goods in Class 3
including “cologne” and “Belts; Button down shirts; Hats; Lingerie;
Pants; Polo shirts; Shirts; Socks; Stretch pants; T-shirts; Underwear;
Yoga pants” in Class 25.
• WHERE FASHION MEETS FRAGRANCE (Reg. No. 6754926) for
goods in Class 3 including “perfume” and “candles” in Class 4.
Additionally, the Examining Attorney submitted the following third-party
internet marketplace evidence demonstrating that a single entity provides the goods
at issue under a single mark. The websites are identified below:9
• Screenshots from the website wwww.versace.com – offering for sale
fragrances and candles under the VERSACE mark.
• Screenshots from the website www.gucci.com.com - offering for sale
both candles and fragrances under the GUCCI mark.
• Screenshots from the website www.dior.com – offering for sale
fragrances, candles and clothing, namely, pants and shorts, under
the DIOR mark.
• Screenshots from the website www.tomfordbeauty.com – offering for
sale candles, fragrances and pants and shorts under the TOM FORD
mark.
• Screenshots of the website www.burberry.com – offering for sale
fragrances, candles and men’s pants and shorts under the
9 July 23, 2025 Final Office Action, TSDR pp. 7-21.

Serial No. 98831998
12
BURBERRY mark.
We initially note that VERSACE, GUCCI, DIOR, TOM FORD, and BURBERRY
are designer name marks. Consumers likely will perceive Applicant’s and
Registrants’ marks as product marks rather than designers’ names, particularly since
there is no evidence that Applicant or either Registrant is a designer. Nevertheless,
this evidence still has some significance because consumers encounter these brands
in the marketplace, and therefore, are exposed to the use of these marks on
fragrances, clothing and candles. Wet Seal, Inc. v. FD Mgmt., Inc., No. 91157022, 2007
WL 458529, at *10 (TTAB 2007) (evidence of three companies, CALVIN KLEIN,
CHANEL and BCBG, selling both clothing and fragrances under their house marks
supported that clothing and fragrances are related).
We find that the third-party registration evidence and marketplace use evidence,
when viewed in tandem, sufficiently demonstrate that Applicant’s goods and
Registrants’ goods are related for likelihood of confusion purposes. Thus, the second
DuPont factor also favors a finding of likelihood of confusion.
C. Similarity of Trade Channels and Classes of Purchasers
We next consider established, likely-to-continue channels of trade, the third
DuPont factor. Because there are no limitations as to channels of trade or classes of
purchasers in either Applicant’s application or the cited registrations and the
identified goods are related, we must presume that the goods identified in Applicant’s
applications and the cited registrations travel through all normal and usual trade
channels for such goods, and that they are sold to all classes of prospective purchasers
for those goods. Stone Lion, 746 F.3d at 1322-23; see also Coach Servs., 668 F.2d at

Serial No. 98831998
13
1370 (absent limitation “goods are presumed to travel in all normal channels ... for
the relevant goods”).
The only probative evidence relating to the trade channels through which the
goods at issue travel is the third-party website evidence submitted by the Examining
Attorney discussed above. This evidence shows that Applicant’s goods and
Registrants’ goods are the type of goods that may be provided in the same online
marketplace to similar or overlapping purchasers. We additionally note that it is
common knowledge that clothing items, perfumes/colognes, and candles are all sold
at brick and mortar department stores and are available to the general public.
Therefore, the third DuPont factor weighs in favor of finding a likelihood of confusion.
D. Thirteenth DuPont Factor
Under the thirteenth DuPont factor, which considers “[a]ny other established fact
probative of the effect of use,” DuPont, 476 F.2d at 1361, we address Applicant's
argument that because the two cited marks, owned by different registrants, co-exist
on the Register and are more similar to each other than Applicant’s mark, Applicant’s
mark should be entitled to proceed to registration.10
The existence on the register of other seemingly similar marks does not provide
a basis for registrability for Applicant’s mark. See AMF Inc. 474 F.2d at 1406 (“the
existence on the register of confusingly similar marks cannot aid an applicant in its
effort to register another mark which so resembles a registered mark as to be likely
to cause confusion, mistake or to deceive.”); In re Total Quality Grp., Inc., No.
10 Applicant’s Appeal Brief, pp. ii-iii, 4 TTABVUE 3-4.

Serial No. 98831998
14
75078660, 1999 WL 588248, at *5 (TTAB 1999) (same). This is particularly true since
we do not know the history of these two cited registrations or the commercial
relationships between the two Registrants or whether these Registrants have
consented to the coexistence of their respective registrations.
Notwithstanding, neither the Board nor any Trademark Examining Attorney is
bound by decisions of Examining Attorneys to register prior marks. To the contrary,
“the [US]PTO must decide each application on its own merits, and decisions
regarding other registrations do not bind either the [USPTO] or [the reviewing]
court.” See In re Boulevard Entm’t, 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 [Board] must forgo applying that standard in all other cases.”
Id. Indeed, the issuance of the two cited registrations does not require the approval
of a third registration if, on the facts of the case, it would be improper to do so under
the governing legal standard. See, e.g., In re Cordua Rests., 823 F.3d at 600 (“The
PTO is required to examine all trademark applications for compliance with each and
every eligibility requirement, including non-genericness, even if the PTO earlier
mistakenly registered a similar or identical mark suffering the same defect.”); cf. In
re Shinnecock Smoke Shop, 571 F.3d at 1174 (“Even if all of the third-party
registrations should have been refused registration under section 1052(a), such errors
do not bind the USPTO to improperly register Applicant’s marks.”).

Serial No. 98831998
15
In that regard, Applicant was not without remedy against the refusal of
registration in this case. Applicant could have sought a suspension of this appeal or
the prosecution of its application after receiving the Section 2(d) refusal to pursue (1)
a cancellation proceeding or civil action against the cited registrations, if appropriate,
or (2) possibly a consent agreement with one or both Registrants. The record
demonstrates, however, that Applicant did not pursue these alternatives. Overall,
this is not a case in which the co-existence of the cited registrations outweighs the
impact of the other DuPont factors on the issue of a likelihood of confusion,
particularly since the Examining Attorney’s refusal is justified on the record in this
case. The thirteenth DuPont factor is neutral.
III. Conclusion
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We find that (1) the marks at issue are similar, (2) Applicant’s and
Registrants’ goods are related, and (3) the parties’ respective goods travel, at a
minimum, in overlapping trade channels and are offered to overlapping classes of
consumers.
As such, we conclude that Applicant’s standard character mark EAU DE
MACABRE, as used in connection with “fragrances and perfumery,” so resembles
the cited marks for various clothing items and MACABRE
(in standard characters) for “candles,” as to be likely to cause confusion or mistake,
or to deceive under Section 2(d) of the Trademark Act.

Serial No. 98831998
16
Decision: The refusal to register Applicant’s EAU DE MACABRE mark under
Section 2(d) of the Trademark Act is affirmed.