Simplicity Holistic Health, LLC v. Bianca Kiovanni

This Opinion is Not a
Precedent of the TTAB
Mailed: January 27, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Simplicity Holistic Health, LLC
v.
Bianca Kiovanni
_____
Opposition No. 91285989
William A. McKenna of Woodard, Emhardt, Henry Reeves & Wagner, LLP, for
Simplicity Holistic Health, LLC.
Bianca Kiovanni, pro se.
_____
Before Thurmon, Allard and Brock, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Bianca Kiovanni (“Applicant”) seeks registration on the Principal Register of the
mark shown below for “Tea; Tea-based beverages; Beverages made of tea; Iced tea,”
in International Class 30, and “Lemonade,” in International Class 32:

Opposition No. 91285989
- 2 -
.1
Simplicity Holistic Health, LLC (“Opposer”) opposes registration under Section
2(d) of the Act, alleging priority and a likelihood of confusion with three registered
marks owned by Opposer, namely:
• SIMPLICITY, in standard characters for “Cold pressed drinks made from
fruits and vegetables for cleansing,” in International Class 32;2
1 Application Serial No. 97469999, was filed on June 22, 2022 under Trademark Act Section
1(a), 15 U.S.C. § 1051(a), and alleging November 2, 2017 and May 7, 2019, as the date of first
use and first use in commerce, respectively, for each class. The mark is described as follows:
The mark consists of a yellow circle with the stylized &
capitalized wording “Simplicity” in yellow at the top [sic] the
circle with the stylized and capitalized wording “Beverage
Company” in yellow at the bottom of the circle. The second “i” in
SIMPLICITY contains a green leaf above it. Between the
wording “SIMPLICITY” and “BEVERAGE COMPANY” appears
a yellow circle surrounding another yellow circle that contains
eight (8) yellow petals all of which are connected in the center
and which resemble a slice of lemon. Within the first circle and
appearing between the terms “SIMPLICITY” and “BEVERAGE
COMPANY” and on opposite sides are two curved yellow lines.
All white areas are clear and/or transparent areas, and not part
of the mark.
The colors yellow and green are claimed as a feature of the mark. The words “ BEVERAGE
COMPANY” are disclaimed.
2 Registration No. 5035149, issued on September 6, 2016, from an underlying application
filed on December 8, 2015. A partial Section 8 and 15 combined declaration has been accepted
and acknowledged.

Opposition No. 91285989
- 3 -
• SIMPLICITY FAT BURNER, in standard characters for “Vegetable-fruit
juices,” in International Class 32;3 and
• SIMPLICITY FRESH AIR, in standard characters for “Vegetable-fruit
juices,” in International Class 32.4
The parties submitted an Accelerated Case Resolution (“ACR”) stipulation, which
was clarified through a conference with an Interlocutory Attorney.5 The ACR
stipulation, as clarified, included a stipulation to facts supporting Opposer’s statutory
entitlement to bring this action, that priority is not in dispute, and set other limits
on the trial process. Opposer submitted evidence and briefs. Applicant filed a brief,
with some attached evidence, challenging Opposer’s evidence and arguments. The
case is now ready for final decision. We find Opposer has proven a likelihood of
confusion, the sole remaining issue before us, and for that reason, we sustain the
opposition.
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the opposed Application. In addition, Opposer
submitted title and status records for the three registrations it relies upon, a
declaration by its owner, and a dictionary definition of the word “simplicity.”6
3 Registration No. 5673885, issued on February 12, 2019, from an underlying application filed
on May 30, 2018. The words “FAT BURNER” have been disclaimed. A combined Sections 8
and 15 declaration has been accepted and acknowledged.
4 Registration No. 5648836, issued on January 8, 2019, from an underlying application filed
on May 30, 2018. A combined Sections 8 and 15 declaration has been accepted and
acknowledged.
5 35 TTABVUE (ACR stipulation), 37 TTABVUE (Board Order clarifying and accepting the
ACR stipulation).
6 38 TTABVUE. The ACR stipulation provided dates for the parties’ briefs, but did not
identify new trial periods for the parties. The stipulation provided no period for submission
of evidence. Opposer submitted its evidence on the same day it filed its brief, though no

Opposition No. 91285989
- 4 -
Applicant submitted, with its brief, screenshots and images showing the parties’
goods, excerpts from Applicant’s social media and some correspondence.7 In addition,
the ACR stipulation includes the following stipulated facts that are relevant to our
likelihood of confusion analysis:
• Opposer is the owner of the three registrations identified above;8
• The parties’ goods, as identified in the opposed Application and the three
Registrations, “are identical and move in the same trade channels ….”9; and
• “The word ‘simplicity’ has no special meaning in the juice or beverage
products fields.”10
I. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 125-26 n.4 (2014)). A party in the position of plaintiff may oppose
an application where such opposition is within the zone of interests protected by the
statute, 15 U.S.C. § 1063, and the opposer must have a reasonable belief in damage
that is proximately caused by registration of the mark. See Peterson v. Awshucks SC,
Order from this Board allowed for such a submission. Applicant did not object, and for that
reason, we will consider the evidence submitted by Opposer.
7 40 TTABVUE 24-40. In a non-ACR proceeding, it would be improper for Applicant to submit
evidence with a trial brief, but Opposer submitted its evidence on the same day as its trial
brief was filed, which has the effect as attaching evidence to a brief. Neither party objected,
so we allow the evidence into the record, though neither party complied with our normal rules
for submission of evidence. Applicant also submitted a copy of the ACR stipulation.
8 35 TTABVUE 3-4.
9 Id. at 4.
10 Id. at 5.

Opposition No. 91285989
- 5 -
LLC, No. 92066957, 2020 TTAB LEXIS 520, at *17 (citing Corcamore, LLC v. SFM,
LLC, 978 F.3d 1298, 1303-04 (Fed. Cir. 2020)).
Opposer has made of record its three pleaded registrations, which the parties
stipulated are active and owned by Opposer.11 This establishes Opposer’s entitlement
to bring its Section 2(d) claim against Applicant. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 945 (Fed. Cir. 2000) (pleaded registrations “suffice to establish … direct
commercial interest”); Barbara’s Bakery, Inc. v. Landesman, No. 91157982, 2007
TTAB LEXIS 9, at *5-6 (opposer’s entitlement to opposition established by pleaded
registration and non-frivolous likelihood of confusion claim).
II. Law and Analysis – Section 2(d)
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of a
mark that “[c]onsists of or comprises a mark which so resembles a mark registered in
the Patent or Trademark Office, or a mark or trade name previously used in the
United States by another and not abandoned, 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.” To prevail on its Section 2(d) claim, Opposer must show by a
preponderance of the evidence that it has either a registration of or priority in its
SIMPLICITY marks, and that Applicant’s use of her mark is likely to cause confusion,
mistake, or deception regarding the source of the goods identified in her Application.
New Era Cap Co. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *2-3.
11 38 TTABVUE 6-26 (evidence); 35 TTABVUE 3-4 (stipulation).

Opposition No. 91285989
- 6 -
A. Priority
Because Opposer’s pleaded registrations are properly of record and because
Applicant did not counterclaim to cancel any of them, priority is not at issue with
respect to the registered marks and the goods and services identified in the
registrations. Nkanginieme v. Appleton, No. 91256464, 2023 TTAB LEXIS 64, at *40.
In addition, the parties stipulated, “Priority of use is not at issue in this opposition.”12
B. Likelihood of Confusion
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 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912
F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between
an applicant’s mark and a previously registered mark is determined on a case-by-case
basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018). When analyzing
these factors, the overriding concerns are not only to prevent buyer confusion as to
the source of the goods or services, but also to protect the registrant from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993).
12 35 TTABVUE 4.

Opposition No. 91285989
- 7 -
“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). Varying
weights may be assigned to each DuPont factor depending on the evidence presented.
See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011);
Shell Oil, 992 F.2d at 1206 (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See 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)); In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (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.”).
We address the DuPont factors raised by the parties in turn below. We focus our
analysis on Opposer’s SIMPLICITY mark, as it is more similar to the applied-for
mark than the other two marks relied upon by Opposer. In re Max Cap. Grp. Ltd.,
No. 77186166, 2010 TTAB LEXIS 1, at *5.
1. Similarity of the Marks
To evaluate the similarity of the marks under the first DuPont factor, we consider
the marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (citing DuPont, 476 F.2d at 1361). “Similarity

Opposition No. 91285989
- 8 -
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 TTAB LEXIS 170, at *13 (quoting In
re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *4, aff’d mem., 777 F. App’x 516
(Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732
(CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone
is likely to cause confusion.”) (citation omitted).
“The proper test 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.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
normally “retains a general rather than a specific impression of marks.” In re
i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS 281, at *11.
The marks are similar in appearance, sound, meaning and commercial
impression. Though Applicant’s mark features a significant design element, the only
literal term not disclaimed in the mark is “Simplicity,” which is positioned by itself
at the top of the mark and is in a larger font than “Beverage Company.” The design
elements of Applicant’s mark create a visual difference, but consumers will notice
that the primary word in Applicant’s mark is identical to the entire SIMPLICITY
mark relied upon by Opposer. “Likelihood of confusion often has been found where
the entirety of one mark is incorporated within another.” Hunter Indus., Inc. v. Toro
Co., No. 91203612, 2014 TTAB LEXIS 105, at *33.

Opposition No. 91285989
- 9 -
The marks are very similar in sound, as consumers are unlikely to attempt to
“pronounce” or describe the design features of Applicant’s mark when asking for
Applicant’s goods. Indeed, given the descriptive nature of the “Beverage Company”
part of the applied-for mark, consumers are likely to shorten this mark to
“Simplicity,” particularly when asking for the goods or when telling others about the
goods. In re Bay State Brewing Co., No. 85826258, 2016 TTAB LEXIS 46, *9 (“[W]e
also keep in mind the penchant of consumers to shorten marks.”). The high degree of
similarity in sound increases the likelihood of confusion.
The parties stipulated that the word “simplicity” has no special meaning for the
parties’ goods. Given this stipulation, we find the marks have the same meaning;
generally, whatever the word “simplicity” means to each consumer will apply to either
party’s mark. In re Embiid, 2021 TTAB LEXIS 168, at *20-21 (finding no reason to
believe the same term means something different in the parties’ marks).
The marks are used with beverages—tea and fruit drinks—so the term
“simplicity” evokes drinks made from basic ingredients without much additional
processing. We find the commercial impressions created by the marks are similar.
In summary, we find the marks are similar in appearance, sound, meaning and
commercial impression. This finding strongly supports Opposer’s Section 2(d) claim.
2. Similarity of the Goods, Trade Channels and Classes of
Customers
The second, third and fourth DuPont factors consider the similarity of the goods,
the trade channels and the classes of consumers who buy and use the goods. The
parties stipulated that their goods are identical and flow through the same trade

Opposition No. 91285989
- 10 -
channels.13 This stipulation, therefore, resolves our inquiry under the second and
third DuPont factors.14 These factors support Opposer’s claim.
The fourth DuPont factor considers the classes of consumers who buy and use the
goods. Because the goods are identical and neither the Application nor the relied upon
Registration contain any limitations, it follows that these goods are consumed by the
same class of consumers.15 Opposer makes exactly that argument, and Applicant does
not contest this issue.16 The fourth DuPont factor also supports Opposer’s claim.
3. Strength of Opposer’s SIMPLICITY Mark
We consider the strength of Opposer’s mark under the fifth and sixth DuPont
factors. While Opposer argues that its SIMPLICITY marks are commercially strong,
it provided no evidence to support that argument. Cai v. Diamond Hong, Inc., 901
F.3d 1367, 1370 (Fed. Cir. 2018) (attorney argument is not evidence).
The parties stipulated that the word “simplicity” has no special meaning for the
goods. In addition, Opposer’s SIMPLICITY mark was registered on the Principal
Register without evidence of acquired distinctiveness, so we must presume this mark
is inherently distinctive. We find Opposer’s SIMPLICITY mark is suggestive of
simple beverages without many ingredients or processing. The mark has moderate
conceptual strength.
13 35 TTABVUE 4.
14 Applicant argues in her trial brief that the parties’ goods are different. 40 TTABVUE 8-9.
These arguments are contradicted by the ACR stipulation, which is binding. The arguments
are also unsupported by the identification of goods in the Application and Opposer’s
Registration.
15 35 TTABVUE 4-5 (stipulation regarding Opposer’s Registrations).
16 39 TTABVUE 21-22.

Opposition No. 91285989
- 11 -
We find the conceptual strength of Opposer’s SIMPLICITY mark weighs slightly
in Opposer’s favor, but that Opposer has failed to prove that its mark is commercially
strong, so commercial strength is neutral in our likelihood of confusion analysis.
4. Actual Confusion or the Lack Thereof
Opposer referred to two incidents of alleged actual confusion in a declaration by
its owner.17 The two incidents both arose from the Atlanta area, where Opposer’s
owner testified it has no distribution. Applicant’s business is located in Atlanta, and
this evidence appears to show two instances of actual confusion. We have no
contextual evidence to confirm what happened, but Opposer’s evidence appears to
show that at least two consumers in the Atlanta area believed Applicant’s goods were
those of Opposer. This evidence is thin, and as we noted, lacks context, but we find it
provides some additional support for Opposer’s likelihood of confusion claim.
Applicant, on the other hand, argues that there has been no actual confusion over
a period of time, suggesting that confusion is not likely.18 There is no evidence
establishing that the circumstances under which actual confusion is likely to occur—
that is, overlapping distribution of the same goods in the same region for a substantial
period of time. Indeed, in disputing Opposer’s actual confusion evidence, Applicant
asserts that her goods were launched exclusively online on November 1, 2021 and
that she had no wholesale/retail customers until July 11, 2022.19
17 38 TTABVUE 29-30.
18 40 TTABVUE 12.
19 Id. at 10-11. We note that Applicant claimed May 7, 2019 as her date of first use in
commerce for both classes of goods of her mark in her Application, a date that appears to
have been over two years prior to her exclusive online product launch. In addition, while

Opposition No. 91285989
- 12 -
We have no evidence in the record establishing the scope of either party’s
distribution of its goods. We have no evidence of how long each party has operated in
particular markets. In short, we lack the sort of evidence needed to determine
whether there has been peaceful coexistence of these marks and whether that
coexistence is probative on the likelihood of confusion question. CDOC, Inc. v. Liberty
Bankers Life Ins. Co., 844 F. App’x 357, 363 (Fed. Cir. 2021) (when we “determine if
the absence of actual confusion is indicative of the likelihood of confusion, the fact
finder looks to real market conditions to evaluate consumer exposure to the marks at
issue, assessing the length of time of any concurrent use; the similarity of the
services, customers, and trade channels.”).
We find seventh DuPont factor (actual confusion evidence) weighs slightly in
Opposer’s favor, while the eighth DuPont factor (lack of actual confusion over time)
is neutral.
5. Conclusion – Weighing the Factors
We find the marks are similar and the parties stipulated that the goods20 and
trade channels are identical. The first three DuPont factors, therefore, weigh heavily
in favor of Opposer’s Section 2(d) claim. The fourth DuPont factor (classes of
consumers), the sixth factor (conceptual strength), and the seventh factor (actual
Applicant makes these statements in her brief, there is no evidence establishing any of these
facts. As we noted above concerning Opposer’s argument that its mark has commercial
strength, the arguments of a party or its counsel, without supporting evidence, are of little
value to the Board.
20 The parties expressly stipulated that both classes of goods identified in the Application are
identical to the goods identified in Opposer’s Registrations. 35 TTABVUE 4.

Opposition No. 91285989
- 13 -
confusion) weigh slightly in favor of Opposer’s claim. The remaining factors we
considered are neutral. No DuPont factors support Applicant’s position. Opposer has
proven a likelihood of confusion as to both classes of goods in the Application, and
because priority is not in issue, both elements of Opposer’s Section 2(d) claim have
been established.
Decision: The opposition is sustained.