79395386•Stefan Thaler
Testo completo
This Opinion is Not a Precedent of the TTAB Mailed: July 7, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Stefan Thaler Serial No. 79395386 _____ Avraham S.Z. Cohn of Cohn Legal PLLC, for Stefan Thaler. Christopher Reams, Trademark Examining Attorney, Law Office 124, Lydia Belzer, Managing Attorney. _____ Before English, Lebow and Elgin, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: Stefan Thaler (“Applicant”) seeks registration on the Principal Register of the standard-character mark FUNTASYA1 for: Clothing, namely, shirts, pants, hats, shorts, jerseys, hoodies in International Class 25; and Retail online store services featuring clothing; retail and wholesale online store services featuring clothing, shoes, footwear, headwear and fashion accessories; retail online store services featuring clothing; online retail online store services featuring clothing; retail online store services 1 Application Serial No. 79395386 was filed on April 1, 2024 as a request for extension of protection under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141(f)(a), based on International Reg. No. 1789037.
Serial No. 79395386 - 2 - featuring bags; retail online store services featuring party decorations; retail online store and wholesale online store services featuring glasses, drinking vessels and barware; retail online store services featuring printed matter being post cards, stickers, banners, printed napkins and printed foam boards; retail online store services featuring stationery in International Class 35. 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 with the mark (THE ADULT SHOP disclaimed) registered on the Principal Register for: Retail store and online retail store and wholesale store services featuring adult products, videos, DVDs, magazines, toys, novelties, lingerie and leather clothing, in International Class 35 (the “Cited Mark” or “Cited Registration”).2 When the refusal was made final, Applicant appealed and requested reconsideration.3 The request for reconsideration was denied and the appeal proceeded. The appeal is fully briefed. We affirm the refusal to register Applicant’s mark as to both classes in the application. 2 Registration No. 3125617 was issued on August 8, 2006; renewed. The registration does not include a description of the mark but does specify that color is not claimed as a feature of the mark. 3 Citations to the record are to the downloadable .pdf versions of documents in the Trademark Status & Document Retrieval (TSDR) database. Citations to the briefs refer to TTABVUE, the Board’s online docket system.
Serial No. 79395386 - 3 - I. 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 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 Commc’ns., Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 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.”). Varying weights, however, may be assigned to the DuPont factors depending on the evidence presented. See Citigroup Inc. v. Cap. City Bank Grp., 637 F.3d 1344, 1355 (Fed. Cir. 2011); 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).
Serial No. 79395386 - 4 - In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods or services. 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 address these two factors and other relevant DuPont factors below. A. 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; see also Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “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) (citing In re Davia, No. 85497617, 2014 WL 2531200, at *2 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019). The issue is not whether the marks can be distinguished when subjected to a side- by-side comparison, but rather whether the marks are sufficiently similar in terms of
Serial No. 79395386 - 5 - their overall commercial impression such that confusion as to the source of the goods and services offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). 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 the average consumer, who normally retains a general rather than specific impression of trademarks. L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *5 (TTAB 2012); Baseball Am. Inc. v. Powerplay Sports Ltd., No. 91120166, 2004 WL 1942057, at *3 (TTAB 2004); Sealed Air Corp. v. Scott Paper Co., No. 91055167, 1975 WL 20752, at *3 (TTAB 1975). 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.”). But one feature of a mark may be more significant than another, and it is not improper, for rational reasons, to give more weight to a dominant feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. See, e.g., In re Charger Ventures, 64 F.4th at 1382 (permissible for the Board “to focus on dominant portions of a mark”); In re Detroit Athletic, Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (it was not error for the Board to focus on dominant portions of the marks).
Serial No. 79395386 - 6 - We find that the word FUNTASIA is the dominant element of the Cited Mark because it is the first literal element in the mark and it is displayed in a much larger font than THE ADULT SHOP, which has been disclaimed. See, e.g., In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731, at *4 (TTAB 2025) (entry of disclaimer is “an implicit concession that the term is descriptive”); Presto Prods. Inc. v. Nice-Pak Prods. Inc., No. 91074797, 1988 WL 252340, at *3 (TTAB 1988). As such, in comparing the marks, we give greater weight to the word FUNTASIA in the Cited Mark. With respect to appearance, the dominant word FUNTASIA in the Cited Mark is quite similar to Applicant’s mark FUNTASYA. Average consumers with a general recollection are unlikely to notice or remember the one letter difference in the last syllable of the words. L’Oreal v. Marcon, 2012 WL 1267956, at *5; Baseball Am. v. Powerplay Sports, 2004 WL 1942057, at *3. The phrase THE ADULT SHOP in the Cited Mark is a point of difference, but the phrase does not make much of a visual impact because it is non-distinctive and appears below, and in much smaller font than, the dominant word FUNTASIA. See In re Charger Ventures, 64 F.4th at 1382 (recognizing that “while the Board must consider the disclaimed term, an additional word or component may technically differentiate a mark but do little to alleviate confusion”). The two stripes in the Cited Mark merely serve to underscore the literal elements of the mark and have little, if any, source identifying significance.
Serial No. 79395386 - 7 - In comparing the appearance of the marks, we also take into account that Applicant’s standard-character mark FUNTASYA is not limited to a particular manner of display. We therefore must consider that Applicant’s mark may be displayed in a font style similar to the font style used for the term FUNTASIA in the Cited Mark, which would increase the visual similarity between the marks. As to sound, Applicant’s mark FUNTASYA is a coined term, as is the term FUNTASIA in the Cited Mark; these words differ only in the second to last letter, “y” and “i,” respectively, which sound substantially similar. Because “there is no correct pronunciation of a trademark [or term] that is not a recognized word,” we find that Applicant’s mark FUNTASYA and the FUNTASIA portion of the Cited Mark are likely to be pronounced substantially the same. StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir. 2014); In re Jimenez, No. 97551823, 2025 WL 3126703, at *5 (TTAB 2025) (“Generally, the principle that there is no correct pronunciation of a mark applies with greater force when one of the marks involved is a coined mark without a specific meaning.”). This similarity in sound is significant because FUNTASIA is the dominant element in the Cited Mark. Indeed, consumers may drop the non-distinctive phrase THE ADULT SHOP when referring to Registrant’s services. See, e.g. In re Bay State Brewing Co., No. 85826258, 2016 WL 1045677, at *3 (TTAB 2016) (consumers may drop the highly descriptive term ‘Blonde’ when calling for TIME TRAVELER BLONDE beer) (citing In re Abcor Dev. Corp., 588 F.2d 811, 815 (CCPA 1978) (Rich, J., concurring) (“[T]he users of language have a universal habit of shortening full
Serial No. 79395386 - 8 - names–from haste or laziness or just economy of words[.]”)); see also Spoons Rests. Inc. v. Morrison Inc., No. 91079317, 1991 WL 355249, at *5 (TTAB 1991) (recognizing consumers’ “propensity for shortening names with which they have become familiar”). But even if consumers were to pronounce the entirety of the literal elements in the Cited Mark , there is still a similarity in sound because the first word in the Cited Mark sounds substantially the same as Applicant’s mark FUNTASYA. We now turn to meaning and commercial impression. The term FUNTASIA in the Cited Mark and Applicant’s mark FUNTASYA both call to mind the words “fantasia”4 and “fantasy.” Based on the record, we agree with Applicant that the additional phrase THE ADULT SHOP in the Cited Mark has a sexual connotation with respect to Registrant’s retail and wholesale store services “featuring adult products, videos, DVDs, magazines, toys, novelties, lingerie and leather clothing.”5 The Cited Mark 4 We take judicial notice of the MERRIAM-WEBSTER DICTIONARY definition below for the word “fantasia” at www.merriam-webster.com/dictionary/fantasia (emphasis omitted) (last visited July 1, 2026): 1 : a free usually instrumental composition not in strict form[; and] 2 a : a work (such as a poem or play) in which the author’s fancy roves unrestricted b : something possessing grotesque, bizarre, or unreal qualities[.] “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, No. 88098031, 2023 WL 111145, at *4 n.5 (TTAB 2023). 5 See January 21, 2025 Office Action Response, TSDR 14 (article at ibisworld.com/united- states/industry/adult-stores/4384/ explaining that the growth in the “adult stores industry [is] primarily because of the increased normalization and social acceptance of adult products.”); April 1, 2025 Final Office Action, at TSDR 18-19 (Spectrum Boutique listing
Serial No. 79395386 - 9 - thus carries a connotation and commercial impression of a fantasia or fantasy of a fun, sexual nature. Applicant’s mark might not carry a sexual connotation, but the marks still share a similar general connotation and commercial impression related to a fun fantasia or fantasy. To the extent that for some consumers the marks do not call to mind the words “fantasia” or “fantasy,” the marks will be perceived as coined terms with no particular meaning. Because the dominant term FUNTASIA in the Cited Mark is nearly identical to Applicant’s coined mark FUNTASYA, the marks would likely be perceived the same, albeit with the Cited Mark conveying an added sexual connotation. Because of the similarities between the marks, we find that consumers familiar with the Cited Mark who encounter Applicant’s mark FUNTASYA are likely to perceive it as a variation of the Cited Mark identifying a line extension or to otherwise mistakenly believe that Applicant’s goods and services are associated with or sponsored by Registrant. See, e.g., In re Great Lakes Canning, products of a sexual nature under “Adult Party Supplies”); id. at 34-35 (Raymond & Co. selling products of a sexual nature under the heading “Adult Toys, Miscellaneous”); id. at 76 (KNOCKFIRST, “Your local ‘couple’s boutique’ adult super toy store” selling products of a sexual nature); September 26, 2025 Request for Reconsideration, TSDR 27-53 (blog titled “The Complete Guide to Shipping Adult Products” describing the “U.S. Sex Toys Market); id. at 70 (GOOGLE Merchant Center Help page identifying “adult-oriented content” as including “adult merchandise” and “sexually suggestive content”); id. at 105 (article titled “How to be Successful in an Adult eCommerce Niche” answering “How to start an online sex toy store?”); id. at 114 (the AMAZON Seller Central page identifying “Adult products” as including products of a sexual nature).
Serial No. 79395386 - 10 - Inc., No. 73365360, 1985 WL 71929, at *3 (TTAB 1985) (“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 overall are similar. Applicant has not advanced any arguments under the first DuPont factor, and thus, this finding is unchallenged. B. Goods and Services, Trade Channels, Consumers, and Conditions of Purchase Before considering the second, third and fourth DuPont factors, we address Applicant’s arguments that Registrant’s services, trade channels and consumers are limited to sexual products sold through adult sex shops to consumers seeking intimate products that are purchased only after age verification. Specifically, Applicant argues that: Registrant functions within the highly niche and idiosyncratic field of the adult industry. Registrant’s adult e-commerce business operates within a uniquely regulated environment characterized by stringent country, state, and age-based restrictions, as well as compliance obligations imposed by e-commerce platforms themselves. It is a self- contained industry governed by specific financial regulations, advertising limitations, and access controls, all of which underscore its separation from the mainstream retail marketplace in which Applicant operates.6 … Registrant’s services are confined to the highly specialized, adult- oriented retail sector, offering sexually explicit products, adult novelties, 6 Appeal Brief, 6 TTABVUE 9.
Serial No. 79395386 - 11 - videos, and lingerie. The customers frequenting such establishments or online outlets comprise a distinct and narrowly defined group of adult consumers seeking products of a personal or intimate nature. To this end, the adult niche industry, and particularly adult novelty stores, is regulated by law to ensure that customers accessing adult websites verify their age before being granted entry, typically confirming that they are 18 years of age or older. Proof of age is likewise routinely required at the point of purchase. These requirements are designed to restrict access to adult-only consumers and reinforce the segregation of this market from mainstream retail commerce.7 … This legally mandated step [also] introduce[es] a deliberate pause in the consumer experience, requiring users to consciously acknowledge the nature of the website they are entering.8 Our determinations under the second, third and fourth DuPont factors must be based on the identifications of goods and services in the involved application and Cited Registration. 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); Sabhnani v. Mirage Brands, LLC, 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[.]”); Sock It To Me, Inc. v. Fan, No. 91230554, 2020 WL 3027605, at *9-10 (TTAB 2020) (determinations under the third and fourth DuPont factors must be based on the identifications of goods and services). We focus our analysis under these factors on Registrant’s “retail store and online retail store and wholesale store services featuring … leather clothing.” In re 7 Id. at 12-13. 8 Id. at 15.
Serial No. 79395386 - 12 - Aquamar, Inc., No. 85861533, 2015 WL 4269973, at *4 n.5 (TTAB 2015) (“[I]t is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods [or services] within a particular class in the application.”) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981)). Registrant’s identification does not include any limitations on the nature of these services, the trade channels through which they are sold or the relevant consumers. Nor may we consider extrinsic evidence on how Registrant uses its mark to narrow these services. See, e.g., i.am.symbolic, 866 F.3d at 1327 (“[T]he Board properly declined to import restrictions into the identification of goods based on alleged real world conditions.”); Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013) (“The PTO proceedings are based on the content of the registration application and not upon any specific use of the challenged mark in commerce.”) (cleaned up); In re FCA US LLC, No. 85650654, 2018 WL 1756431, at *4 (TTAB 2018) (“Evidence of actual marketplace usages that seeks to limit or alter the usages encompassed by the marks, goods and services, or usages listed in the application and registration are not considered in assessing likelihood- of-confusion in the registration context.”). 1. Comparison of the Goods and Services Now that we have assessed the scope of Registrant’s services, we compare them to Applicant’s goods and services under the second DuPont factor. 476 F.2d at 1361. A multiclass application is the equivalent of separate applications so we compare the goods and services separately for each class in Applicant’s application. Federated
Serial No. 79395386 - 13 - Foods, 544 F.2d at 1101-02; G&W Labs., Inc. v. G W Pharma Ltd., No. 91169571, 2009 WL 226025, at *3 (TTAB 2009). We start with Applicant’s Class 25 goods: “clothing, namely, shirts, pants, hats, shorts, jerseys, hoodies.” This identification is broad enough to encompass leather shirts and pants. See, e.g., Monster Energy Co. v. Lo, No. 91225050, 2023 WL 417620, at *7 (TTAB 2023) (“If an application or registration describes goods or services broadly, and there is no limitation as to their nature, it is presumed that the ‘registration encompasses all goods or services of the type described.’”) (quoting Levi Strauss v. Abercrombie & Fitch, 719 F.3d at 1373 (Fed. Cir. 2013)); Sw. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 WL 4464550, at *17 (TTAB 2015) (“Where an applicant identifies its services broadly, we must presume that the services encompass all services of the type identified.”), aff’d mem., 652 F. App’x 971 (Fed. Cir. 2016). A mark for goods “finds its principal use in connection with selling the goods.” In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464 (Fed. Cir. 1988) (emphasis in italics in original changed to bold). Here, Registrant’s retail store and wholesale store services featuring leather clothing encompass a subset of Applicant’s goods, namely, leather pants and shirts. Thus, “there is overlap” on the face of Applicant’s Class 25 and Registrant’s Class 35 identifications. Id.; see also, e.g., In re Detroit Athletic, 903 F.3d at 1306 (“[W]hile the goods [clothing] and services [sports apparel retail services] are not identical, they substantially overlap, which weighs in favor of finding a likelihood of confusion.”); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
Serial No. 79395386 - 14 - 1267 (Fed. Cir. 2002) (identifications themselves may demonstrate relatedness); In re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *3 (TTAB 2019) (identifications themselves supported “overlap” of goods and services); In re Thomas, No. 78334625, 2006 WL 1258862, at *2 (TTAB 2006) (finding confusion likely between similar marks for jewelry and retail jewelry store services); J. Thomas McCarthy, 3 MCCARTHY ON TRADEMARKS ON UNFAIR COMPETITION § 24:25 (5th ed. March 2026 update) (“Where the services consist of retail sales services, likelihood of confusion is found when another mark is used on goods which are commonly sold through such a retail outlet.”). Applicant’s Class 35 services include “retail online store services featuring clothing; retail and wholesale online store services featuring clothing.” These services are broad enough to encompass Registrant’s “retail and online retail store and wholesale store services featuring … leather clothing.” See, e.g., Monster Energy v. Lo, 2023 WL 417620, at *7; Sw. Mgmt. v. Ocinomled, 2015 WL 4464550, at *17. The Class 35 services thus are in-part legally identical. 2. Trade Channels, Consumers, and Conditions of Purchase We now turn to the third DuPont factor, namely, “[t]he similarity or dissimilarity of established, likely-to-continue trade channels” and the fourth DuPont factor, namely, “the conditions under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361.
Serial No. 79395386 - 15 - Applicant focuses its arguments on Registrant’s retail and wholesale store services featuring adult products, novelties, videos and lingerie,9 but we focus our analysis on the trade channels and consumers for Registrant’s “retail and online retail store and wholesale store services featuring … leather clothing” because these are the services we found overlapping with Applicant’s Class 25 goods and “in-part identical” to Applicant’s Class 35 services under the second DuPont factor. Turning first to Applicant’s Class 25 goods, where, as here, “one party uses its mark on goods that are sold in retail [and wholesale] stores that customarily vend those goods, it is clear that the trade channels and customers overlap.” In re Country Oven, 2019 WL 6170483, at *8; see also In re Hyper Shoppes, 837 F.2d at 464-65 (“The respective marks [for ‘general merchandise store services’ and ‘wooden and upholstered furniture’] will have their only impact on the purchasing public in the same marketplace.”). Again, we cannot read any restrictions on trade channels or consumers into Registrant’s identification. With respect to Applicant’s and Registrant’s Class 35 services, because the services are in-part legally identical and there are no restrictions as to trade channels or consumers in the identifications, we presume that Registrant’s and Applicant’s in- part identical services travel through the same channels of trade to the same purchasers. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018) (“With respect to similarity of the established trade channels through which the goods reach customers, the TTAB properly followed our case law and ‘presume[d] that the 9 Appeal Brief, 6 TTABVUE 12.
Serial No. 79395386 - 16 - identical goods move in the same channels of trade and are available to the same classes of customers for such goods.”); In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (identical goods are presumed to travel in same channels of trade to same class of purchasers). As explained above, Applicant may not rely on real world conditions in an attempt to overcome the presumption of overlapping trade channels and consumers.10 As to consumer care for both classes in the involved application, Applicant argues “it is self-evident that the respective purchasers of Applicant’s and Registrant’s goods and services exercise entirely different levels of discernment.”11 Again, this argument relies on a restriction (goods sold through an adult sex shop) that is not identified in Registrant’s identification.12 In any event, Applicant’s argument recognizes that consumers frequenting its stores are “casual” purchasers.13 10 Even if we were to find the trade channels different (mainstream shop v. adult sex shop), there would still be overlap in the relevant consumers because consumers shopping through adult sex shops are members of the general public likely also to shop at mainstream retail stores, featuring, inter alia, clothing, because such types of retail stores are ubiquitous and sell everyday products. In re Embiid, No. 88202890, 2021 WL 2285576, at *13 (TTAB 2021) (identifying shoes, shirts and sweatshirts as “ubiquitous, everyday products” offered to all “normal potential consumers for those goods,” including “all members of the general public”). 11 Appeal Brief, 6 TTABVUE 15. 12 Moreover, Applicant further recognizes that age verification is not required in all relevant jurisdictions. Id. (“Many jurisdictions, both in the United States and abroad, require adult websites to verify that visitors are of legal age before granting access to adult content.”). Registrant’s services also are not limited to online retail store services, and there is no evidence that brick and mortar retailers and wholesalers of adult sexual products employ any age verification systems. 13 Id.
Serial No. 79395386 - 17 - II. Weighing of the DuPont Factors 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 marks are similar. Applicant’s Class 35 services are in-part identical to Registrant’s services and the trade channels and consumers overlap. Similarly, there is overlap between Applicant’s Class 25 goods and Registrant’s services, as well as the trade channels and consumers therefor. The first, second, and third DuPont factors thus weigh in favor of finding confusion likely. The fourth DuPont factor is neutral. No DuPont factor weighs against finding confusion likely. We conclude that there is a likelihood of confusion between Applicant’s and Registrant’s mark as to both classes of goods and services in the involved application.14 III. Conclusion Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed as to both classes. 14 Even if we were to credit Applicant’s arguments addressed in Section I(B) above, there would be, at most, a trade channel restriction on Registrant’s services. Any difference in trade channels, however, would not be sufficient to overcome the similarities in the marks, the in- part identical and overlapping nature of Applicant’s goods and services and Registrant’s services, and the overlap in consumers for Applicant’s goods and services and Registrant’s services. We therefore would reach the same conclusion.
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