Maya Brooke Inc.

THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Mailed: June 4, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Maya Brooke Inc.
Serial No. 98758658
_____
Joseph E. Sutton of Sutton IP Associates,
for Maya Brooke Inc.
Marianne Strassle, Trademark Examining Attorney, Law Office 136,
Megan Askew, Managing Attorney.
_____
Before Thurmon, Cohen, and Elgin, Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Maya Brooke Inc. seeks registration on the Principal Register of
the standard-character mark LIVIA JOLIE (“JOLIE” disclaimed) for “Dresses;
Pants; Shirts; Shorts; Skirts; Tops as clothing; Clothing jackets” in
International Class 25.1 The application provides an English translation of
“JOLIE” in the mark as “beautiful” or “pretty.”
1 Ser. No. 98758658 was filed on September 19, 2024 under Trademark Act Section
1(b), 15 U.S.C. § 1051(b), based on Applicant’s bona fide intent to use the mark in
commerce.

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The Trademark Examining Attorney refused registration under Trademark
Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark,
when used in connection with the identified goods, so resembles the registered
mark LIVIA and design (shown below), for “beachwear, bathing suits” in
International Class 252 that it is likely to cause confusion, to cause mistake, or
to deceive:
After the refusal was made final, Applicant filed an appeal. Applicant and
the Examining Attorney have filed briefs.3 We have reviewed and considered
all of the arguments in the briefs and the evidence properly made of record.
For the reasons set forth below, we affirm the refusal to register.
2 Registration No. 1432996 issued on the Principal Register on March 17, 1987 and
has been renewed. No description is of record, but the mark is the word LIVIA in a
stylized font surrounded by a black rectangle.
3 Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. Applicant’s brief is at 4 TTABVUE.
The Examining Attorney’s brief is at 6 TTABVUE. Citations to the prosecution record
refer to the .pdf version of the TSDR system. See In re Integra Biosciences Corp., No.
87484450, 2022 TTAB LEXIS 17, at *6.

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I. Objection to New Evidence
The Examining Attorney objects to new evidence in the form of additional
third-party registrations filed with Applicant’s appeal brief.4 Applicant, which
did not file a reply brief, did not respond to the objection.
The record in an appeal should be complete prior to the filing of the appeal
and evidence should not be filed with the Board after the filing of a notice of
appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); see also TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.01 (June
2025). Accordingly, the new evidence submitted with Applicant’s appeal brief
is untimely and we have not considered it.
II. 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 goods or services 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”); see also In re Majestic Distilling Co., 315 F.3d 1311, 1315
(Fed. Cir. 2003).
4 6 TTABVUE 2 (objecting to evidence of seventeen third-party registrations not
previously accepted or reviewed by the Examining Attorney).

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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) (citing 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.” Naterra Int’l, 92
F.4th at 1116; see also Charger Ventures, 64 F.4th at 1381. Although 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
or services. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir.
2002)).
Below, we first consider the strength of the cited mark, followed by the
similarity of the marks, goods, and channels of trade.
A. Strength or Weakness of the Cited Mark
Before we compare the marks at issue, we consider Applicant’s arguments
that the cited mark LIVIA is “commercially weak and diluted within the
relevant marketplace,” and thus entitled to “limited scope.”5 We do so because
a determination of the strength or weakness of the mark helps inform us as to
its scope of protection. See In re Morinaga Nyugyo K.K., No. 86338392, 2016
5 4 TTABVUE 8, 9.

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TTAB LEXIS 448, at *17-18 (“[T]he strength of the cited mark is—as always—
relevant to assessing the likelihood of confusion under the du Pont
framework.”).
The fifth DuPont factor considers the “fame” or strength of the prior mark,6
and the sixth factor considers the number and nature of similar marks in use
for similar goods. DuPont, 476 F.2d at 1361. The sixth DuPont factor “allows
Applicant to contract [the] scope of protection by adducing evidence of “[t]he
number and nature of similar marks in use on similar goods.” Made in Nature,
LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 251, at *24 (quoting
DuPont, 476 F.2d at 1361).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent conceptual strength based on the nature of the term itself and its
commercial strength in the marketplace. See Spireon, Inc. v. Flex LTD, 71
F.4th 1355, 1362 (Fed. Cir. 2023) (“There are two prongs of analysis for a
mark’s strength under the sixth factor: conceptual strength and commercial
strength.”); In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir.
2010) (measuring both conceptual and marketplace strength); Made in Nature,
2022 TTAB LEXIS 228, at *24.
6 The fifth DuPont factor considering the “fame” of the cited mark generally is
considered neutral in ex parte appeals because the owner of the cited mark is not a
party to the appeal, and the Examining Attorney is under no obligation to
demonstrate the fame of a cited mark. In re Integrated Embedded, No. 86140341, 2016
TTAB LEXIS 470, at *26.

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In support of its argument, Applicant supplied partial (i.e. not fully
expanded) records from the USPTO’s TSDR database for eight registered
marks “that incorporate the term ‘LIVIA’ in connection with similar or related
goods and services” purportedly to show “the term functions as a common
personal name or arbitrary element rather than a strong source identifier.”7
These registrations are:8
• LIVIANA CONTI (Reg. No. 7665513), registered for (inter alia)
“Clothing for men, women and children, namely, skirts, trousers,
shorts, jeans, shirts, blouses, jerseys, sweaters, T-shirts, vests, suits,
tracksuits, cloaks, coats, overcoats, bomber jackets, tunics, jackets,
anoraks, raincoats, stockings, socks, hats, headwear, scarves, gloves,
neckties, swimsuits, belts, shoes, beach shoes, slippers, boots,
gymnastic shoes, tennis shoes, bath robes, tights, and underwear,”
in Class 25;
• LILYVIA (Reg. No. 6057263), registered for “Beads for making
jewelry; Bracelets; Brooches being jewelry; Diamond jewelry; Ear
studs; Earrings; Jewellery [sic] and imitation jewellery [sic]; Jewelry;
Jewelry findings; Jewelry, namely, arm cuffs; Key chains; keyrings
of common metal; Necklaces; Pendants; Precious gemstones;
Precious metals and their alloys; Rings; Semi-precious gemstones;
Watchstraps: Wristwatches; Jewelry brooches,” in Class 14;
7 4 TTABVUE 8-9.
8 See Apr. 16, 2025 Office Action Response at TSDR 15-23, 25 (partial TSDR records).
The records include the mark, the goods, status, first use dates (if any), and owner of
the registration. They do not include filing basis. We can only base our decision on
what we can see from this evidence, as “[t]he Board does not take judicial notice of
registrations in Office records.” In re MK Diamond Prods., No. 86813875, 2020 TTAB
LEXIS 263, at *1 n.5. The records include a ninth mark, ; we
take judicial notice that this registration has been cancelled. Cf. Volkswagenwerk AG
v. Clement Wheel Co., 1979 TTAB LEXIS 64, at *3 n.3 (taking judicial notice based on
a change in the registration’s status). Cancelled registrations are evidence of nothing
other than the fact that they once issued. Sunnen Prods. Co. v. Sunex Int’l, Inc., No.
91069733, 1987 TTAB LEXIS 92, at *7.

Serial No. 98758658
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• ALIVIA FORD (Reg. No. 6122673), registered for “Dresses; Jackets;
Jeans; Pants; Rompers; Shirts; Shorts; Skirts; Sweaters; Tops as
clothing: Children’s and infant’s apparel, namely, jumpers, overall
sleepwear, pajamas, rompers and one-piece garments,” in Class 25;
• ALIVIA (Reg. No. 6145228), registered for “Bottoms as clothing;
Dresses; Scarves; Tops as clothing; Belts; Footwear; Headwear,” in
Class 25;
• ELIVIA & CO. (Reg. No. 6485964), registered for “Headwear;
Rompers; Sleepwear; Bottoms as clothing for babies and children;
Children’s and infants’ cloth bibs; Swaddling clothes; Tops as
clothing for babies and children,” in Class 25;
• ALIVIA SIMONE (Reg. No. 4720928), registered for “Clothing for
children, namely, shirts, pants, tops, bottoms, dresses, skirts, pants,
jackets, shorts, coats, and one piece garments,” in Class 25;
• (Reg. No. 5303199), registered for “Bloomers; Caps;
Cardigans; Dresses; Hats; Jackets; Jumpsuits; Long johns; Overalls;
Pants; Robes; Rompers; Shirts; Shorts; Socks; Sweaters; Swimsuits;
Underwear; T-shirts,” in Class 25;
• ALYVIA SPRING (Reg. No. 5598914), registered for “Bath towels;
Bed covers; Bed skirts: Bed and table linen; Box spring covers;
Curtain liners; Curtains; Curtains made of textile fabrics; Curtains
and towels; Curtains of textile; Curtains of textile or plastic; Cushion
covers; Dish towels for drying; Draperies; Duvet covers; Fabric table
runners; Fabric window coverings and treatments, namely, curtains,
draperies, sheers, swags and valances; Indoor and outdoor curtains;
Mattress covers: Pillowcases; Place mats of textile: Sheet sets;
Shower curtain liners; Shower curtains; Shower curtains of textile or
plastic; Shower room curtains; Swags; Table cloth of textile; Table
runners of textile; Window curtains,” in Class 24.
The Examining Attorney argues that the proffered third-party registrations
do not show “conceptual” weakness of the cited mark because they “either
provide a different commercial impression since the third-party marks do not
contain the identical term LIVIA … or are for unrelated goods, none so close

Serial No. 98758658
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as Applicant’s and Registrant’s goods.”9 Further, the Examining Attorney
argues that “[t]hird-party registrations are entitled to little weight on the issue
of confusing similarity because the registrations are ‘not evidence that the
registered marks are actually in use or that the public is familiar with
them….’”10 We note that Applicant discussed only “commercial weakness,” and
the Examining Attorney discussed only “conceptual weakness.” We address
both here.
Conceptual strength is a measure of the cited mark’s distinctiveness. A
mark may be placed “in categories of generally increasing distinctiveness: …
(1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). The last three
categories are considered inherently distinctive. “Where, as here, [a] mark is
registered without a Section 2(f) claim of acquired distinctiveness, the mark is
presumed to be inherently distinctive,” that is, at least suggestive. Brooklyn
Brewery Corp. v. Brooklyn Brew Shop, LLC, 17 F.4th 129, 146 (Fed. Cir. 2021);
see also Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at
*48-49 (where a mark “is registered on the Principal Register, with no claim of
acquired distinctiveness under Section 2(f), we presume it is inherently
distinctive, i.e., that it is at worst suggestive of the goods”) (citing Trademark
Act Section 7(b), 15 U.S.C. § 1057(b)). This means that the cited mark is
9 6 TTAVUE 8-9.
10 Id. at 9 (citation omitted).

Serial No. 98758658
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presumptively entitled to at least “the normal scope of protection to which
inherently distinctive marks are entitled.” Sage Therapeutics, Inc. v. Sageforth
Psych. Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139, at *27 (quoting
Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS
452, at *20).
Applicant does not point to evidence (such as dictionary definitions) that
would suggest LIVIA is descriptive or suggestive of a quality of the identified
clothing goods. Instead, Applicant argues that the mark is “a common personal
name or arbitrary element.”11 If arbitrary, of course, the mark would be given
the broadest scope of protection. See In re Opus One Inc., No. 75722593, 2001
TTAB LEXIS 707, at *5 (arbitrary mark is considered strong and entitled to a
“broad scope of protection”).
Applicant failed to offer evidence in support of its argument that the term
is a given (personal) name. But, even if the term LIVIA is a given name, such
marks are not per se regarded as lacking conceptual or inherent strength. See
Ex parte Levi Strauss & Co., 64 USPQ 311 (Comm’r Pats. 1945) (“[I]t has
always been the practice to register given names.”).12 Rather, it is incumbent
upon the applicant to adduce evidence that – if there is evidence that a term
11 4 TTABVUE 9.
12 Section 2 of the Trademark Act does not restrict the ability of a trademark owner to
secure rights and registration for a given name. This case does not appear in the Lexis
database. The cite in the Westlaw database is Ex parte Levi Strauss & Co., 1945 WL
6923 (Comm’r Pats. 1945).

Serial No. 98758658
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in a cited registration is a particular given name – it is weak because it is in
widespread use as a mark or as part of a mark.
As evidence of “commercial” weakness of the cited mark, Applicant offered
only the nine partial records of third-party registrations summarized above.
“[T]hird-party registration evidence that does not equate to proof of third-party
use may bear on conceptual weakness if a term is commonly registered for
similar goods or services.” Made in Nature, 2022 TTAB LEXIS 228, at
*28 (quoting Tao Licensing, LLC v. Bender Consulting Ltd., No. 92057132,
2017 TTAB LEXIS 437, at *47). “The purpose of introducing evidence of third-
party marketplace use is ‘to show that customers have become so conditioned
by a plethora of such similar marks that customers ‘have been educated to
distinguish between different [such] marks on the bases of minute
distinctions.”’ Heil Co., 2024 TTAB LEXIS 494, at *57 (quoting Omaha Steaks
Int’l Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018)).
As to commercial strength, the “probative value of third-party trademarks
depends entirely upon their usage.” Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1373 (Fed. Cir.
2005) (citation omitted). Generally, “third-party registrations are not evidence
of third-party use of the registered marks in the marketplace, for purposes of
the sixth du Pont factor.” In re Davey Prods. Pty, No. 77029776, 2009 TTAB
LEXIS 524, at *22 (citing Olde Tyme Foods Inc. v. Roundy’s, Inc., 961 F.2d 200,
203-04 (Fed. Cir. 1992)); see also AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d

Serial No. 98758658
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1403, 1406 (CCPA 1973) (“The existence of these registrations is not evidence
of what happens in the market place or that customers are familiar with them
nor should the existence on the register of confusingly similar marks aid an
applicant to register another likely to cause confusion, mistake or to deceive.”).
Where “the ‘record includes no evidence of the extent of [third-party uses]…
[t]he probative value of this evidence is thus minimal.’” Id. (emphasis
omitted) (quoting Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1338
(Fed. Cir. 2001)).
For a number of reasons, we discount the probative value of the third-party
registrations Applicant provided as to both conceptual and commercial
weakness. First, two of the eight live registrations (LIVIA CONTI and
LILYVIA) were registered under Section 66(a) of the Trademark Act, 15 U.S.C.
§ 1141f(a), rather than based on use in commerce. The records do not show that
declarations of use under Trademark Act Section 71, 15 U.S.C. § 1141j, have
been filed.13 Because these registrations are not based on use, they have less
probative value as to the meaning of a term to United States consumers. Cf. In
re Info. Builders Inc., No. 87753964, 2020 TTAB LEXIS 20, at *19 n.19 (giving
no consideration to a registration not based on use “because it does not
13 Although the filing bases and prosecution histories are missing from the records,
we conclude that the registrations are based on Section 66(a) because each has an
(unexpanded) section heading for an International Registration, and neither shows
dates of use. These qualities are indicative of Section 66(a) registrations in the TSDR
database.

Serial No. 98758658
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demonstrate exposure of the mark prior to registration through use in
commerce and, therefore, has no probative value”).
Of the six registrations remaining, one (ALYVIA SPRING) is registered for
goods in Class 24 that are not the same as, or even proven similar to, those
listed in the cited registration, and it would be error to rely on it.14 Apex Bank
v. CC Serve Corp., 156 F.4th 1230, 1236 (Fed. Cir. 2025) (“We have held that
the sixth DuPont factor does not require identical goods – only similar
ones.”) (citing Olde Tyme Foods, 961 F.2d at 204; Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir. 2015)).
This leaves only five registrations for various clothing goods that are
potentially probative of the conceptual weakness of the cited mark – ALIVIA
FORD, ALIVIA, ELIVIA & CO., ALIVIA SIMONE, and . The
last of these includes “swimsuits,” which is legally identical to Registrant’s
“bathing suits.” None of these marks are LIVIA, though admittedly they all
contain the same letter string as in the cited mark. Only one – ALIVIA for
“Bottoms as clothing; Dresses; Scarves; Tops as clothing; Belts; Footwear;
Headwear” – does not have additional elements (i.e., FORD; & CO.; SIMONE;
OWL) that somewhat alter the commercial impression of the marks.
14 The same is true of the registrations for the marks (cancelled) and
LILYVIA for goods in Classes 18 and 14, respectively. This is another reason we
cannot rely on the registration.

Serial No. 98758658
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Nonetheless, these marks support the argument that LIVIA is a given name
(or perhaps a short version of a longer name such as ALIVIA or OLIVIA).
Although these registrations have some probative value to show that LIVIA
is a given name, they do not show any connection between the mark and the
registered clothing goods – that is, the mark is arbitrary and conceptually
strong as applied to these goods. There is no evidence of commercial or
conceptual weakness of the cited mark LIVIA under the sixth DuPont factor.
On balance, we conclude that the DuPont factors relating to strength of the
mark weigh slightly in favor of likelihood of confusion.
B. Comparing The Marks
We next turn to the first DuPont factor, the “similarity or dissimilarity of
the marks in their entireties as to appearance, sound, connotation and
commercial impression.” In re Ye Mystic Krewe of Gasparilla, No. 90522364,
2025 TTAB LEXIS 412, at *9 (quoting DuPont, 476 F.2d at 1361). “Similarity
in any one of these elements may be sufficient to find the marks confusingly
similar.” Inn at St. John’s, 2018 TTAB LEXIS 170, at *13 (citation omitted);
accord Krim-Ko Corp. v. Coca-Cola 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).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343
F.3d 1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “is not

Serial No. 98758658
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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)). “The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB LEXIS 196,
at *13. In making our comparison, we keep in mind the strength of the cited
mark, as found above.
Again, Applicant’s mark is LIVIA JOLIE, and the cited mark is
. There is no dispute that LIVIA in both marks is visually and
aurally identical. To that extent, the literal elements in the marks are
identical. But Applicant’s mark includes the following term JOLIE, which
Applicant argues is sufficient to distinguish the marks. In addition to visual
and aural distinctions, Applicant contends JOLIE, which the application states
translates from French to “beautiful” or “pretty” in English, significantly alters
the overall impression and conceptual meaning of LIVIA from a personal given

Serial No. 98758658
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name to “a phrase that conveys a positive aesthetic quality or a sense of
elegance and style….evoking associations with French fashion and design.”15
LIVIA is the leading term in Applicant’s mark and the only term in the cited
mark, a factor which makes “the marks similar.” Palm Bay, 396 F.3d at 1372;
see also Presto Prods., Inc. v. Nice-Pak Prods., No. 91074797, 1988 TTAB
LEXIS 60, at *6 (The fact that two marks share the same first word is generally
“a matter of some importance since it is often the first part of a mark which is
most likely to be impressed upon the mind of a purchaser and remembered.”).
Moreover, the Applicant’s mark incorporates the cited mark in its entirety.
Likelihood of confusion has been found where the entirety of one mark is
incorporated within another. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342,
1347-48 (Fed. Cir. 2010) (finding ML similar to ML MARK LEES (stylized));
Hunter Indus. v. Toro Co., No. 91203612, 2014 TTAB LEXIS 105, at
*33 (finding PRECISION similar to PRECISION DISTRIBUTION
CONTROL).
15 See 4 TTABVUE 5-8. The Examining Attorney counters that JOLIE merely
describes in French that the name LIVIA is “beautiful” or “pretty,” and is a modifier
of the dominant term in Applicant’s mark, LIVIA. 6 TTABVUE 6. Although we do not
agree with the Examining Attorney’s analysis, we note that the Applicant voluntarily
disclaimed the term JOLIE. Disclaimed matter that is descriptive or laudatory of a
party’s goods typically is less significant or less dominant when comparing marks.
Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344, 1351 (Fed. Cir. 2011) (“[T]he
word not disclaimed is generally regarded as the dominant or critical term”);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 947 (Fed. Circ. 2000) (a “descriptive
component of a mark may be given little weight in reaching a conclusion on likelihood
of confusion.”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)).

Serial No. 98758658
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We find Applicant’s argument that the applied-for mark conveys a different
commercial impression due to the use of the French word JOLIE because it
evokes associations with French fashion and design unconvincing. But even if
true, some consumers – particularly those familiar with the cited mark – are
likely to believe the marks are related. Such consumers who later encounter
Applicant’s LIVIA JOLIE clothing goods may well think Applicant’s goods are
a product line extension of Registrant’s goods. See, e.g., Double Coin Holdings
Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at *23 (“ROAD
WARRIOR looks, sounds, and conveys the impression of being a line extension
of WARRIOR.”); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., No. 91197659,
2013 TTAB LEXIS 314, at *32 (“Purchasers of opposer’s GOTT and JOEL
GOTT wines are likely to assume that applicant’s goods, sold under the mark
GOTT LIGHT and design, are merely a line extension of goods emanating from
opposer.”). For all of these reasons, we find that the addition of the term JOLIE
is not sufficient to distinguish the marks which share the dominant term
LIVIA.
The final consideration is whether LIVIA set forth in a stylized form and
within a box – – differs enough from the applied-for mark that
consumers would not find the marks similar. Applicant’s mark is in standard
characters and, as such, “may be presented in any font style, size or color,
including the same font, size and color as the literal portions of [Registrant’s]

Serial No. 98758658
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mark…and in the same stylization actually used or intended to be used by
[Registrant], or one that minimizes the differences or emphasizes the
similarities between the marks.” Sabhnani v. Mirage Brands, LLC, No.
92068086, 2021 TTAB LEXIS 464, *43-44 (cleaned up; citations omitted). We
must assume Applicant’s LIVIA JOLIE standard-character mark could be
displayed in the same stylization in which the words LIVIA appears in the
cited mark above. See id.
In addition, the box around the literal term LIVIA in the cited mark is
merely a background or carrier device and therefore is less likely to be noticed
or recalled by consumers than the literal part of the mark. See In re Hughes
Furniture Indus., No. 85627379, 2015 TTAB LEXIS 65, at *18 (design feature
of mark that merely serves as carrier does not distinguish applicant’s mark
from cited mark). The literal terms LIVIA and LIVIA JOLIE are how
consumers would call for the goods. See L.C. Licensing, Inc. v. Berman, No.
91162330, 2008 TTAB LEXIS 756, at *9 (“In terms of sound, obviously the
design portion of opposer’s mark will be not be spoken, and thus, the marks
are identical in this respect. Further, it is well settled that if a mark comprises
both a word and a design, then the word is normally accorded greater weight
because it would be used by purchasers to request the goods.”) (citing In re
Appetito Provisions Co., No. 73423405, 1987 TTAB LEXIS 47, at *3).
We find that the marks, considered in their entireties, are similar in sight,
sound, meaning, and overall commercial impression. See Inn at St. John’s,

Serial No. 98758658
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2018 TTAB LEXIS 170, at *13 (similarity in any element under the first
DuPont factor may be sufficient to find the marks confusingly similar). Given
the fallibility of consumers’ memories, we find that Applicant’s mark and the
cited mark are similar. Accordingly, the first DuPont factor favors a finding of
likelihood of confusion.
C. The Goods and Trade Channels
Turning to the second DuPont factor, which “considers the similarity or
dissimilarity and nature of the goods as described in the involved application
and cited registration … and contemplates whether the consuming public may
perceive the respective goods as related enough to cause confusion about their
source or origin.” In re Samsung Display Co., No. 90502617, 2024 TTAB LEXIS
258, at *6 (cleaned up; citations omitted).
“We begin with the identifications of … [goods] in the registration and
application under consideration.” In re OSF Healthcare Sys., No. 88706809,
2023 TTAB LEXIS 353, at *10 (cleaned up; citation omitted). It is sufficient for
a likelihood of confusion that relatedness is established for any item in the
identification of goods within a particular class in the registration. See In re
i.am.symbolic, llc, No. 85044494, 2015 TTAB LEXIS 369, at *8 (“Likelihood of
confusion must be found if there is likely to be confusion with respect to any
item in a class that comes within the identification of goods in the application
and cited registration.”), aff’d, 866 F.3d 1315 (Fed. Cir. 2017). The relatedness
of goods may be established based on various evidence, including the language

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of the involved identifications of goods, which may show, on the face of the
identifications, that they are literally or legally identical, or otherwise
intrinsically related. OSF Healthcare, 2023 TTAB LEXIS 353, at *9.
Applicant’s goods are ““Dresses; Pants; Shirts; Shorts; Skirts; Tops as
clothing; Clothing jackets” and the goods in the cited registration are
“beachwear, bathing suits.” We take judicial notice that “beachwear” in the
cited registration means “clothing for wear at a beach.”16 This broad
identification, therefore, overlaps with the narrower identification in
Applicant’s application, including “Shirts; Shorts; … Tops as clothing….” We
find that the goods are legally identical in part. The Examining Attorney also
made of record evidence showing that same entity commonly provides
Applicant’s and Registrant’s clothing items under the same mark, including
third-party registration evidence and internet evidence.17 Applicant does not
dispute the relatedness of the goods. We find that they are legally identical in
part and related.
We turn next to the third DuPont factor, which considers the “similarity or
dissimilarity of established, likely-to-continue trade channels.” Samsung
Display, 2024 TTAB LEXIS 258, at *17 (quoting DuPont, 476 F.2d at 1361). As
16 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/
beachwear, accessed June 4, 2026). The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed format, and we do so
here. In re Cordua Rests. LP, No. 85214191, 2014 TTAB LEXIS 94, at *6 n.4; see also
B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727, 728 (Fed. Cir.
1988) (“dictionaries and encyclopedias may be consulted”).
17 See 6 TTABVUE 10-14 (summarizing evidence of record).

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to the legally identical goods, in the absence of any limitations in the
identifications of channels of trade in the application or registration, we
presume that the channels of trade and classes of purchasers for those goods
are the same. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (even
though there was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal presumption in
determining likelihood of confusion).
As to the related goods, we presume that the goods are, or would be, sold in
all normal channels of trade for such goods and to all usual purchasers of such
goods. In re Bercut-Vandervoort & Co., 1986 TTAB LEXIS 124, at *5 (TTAB
1986) (extrinsic evidence and argument suggesting trade-channel restrictions
not specified in application rejected). The Examining Attorney’s third-party
internet evidence demonstrates that these channels include stores or websites
that sell clothing, and supports a finding that the trade channels and
consumers of the relevant goods overlap.18
By contrast, Applicant’s argument that the actual trade channels and
consumers do not overlap is not supported by evidence.19 In any event actual
channels are not material to our analysis because we must presume all
possible, not just actual, channels of trade. See, e.g., In re Bercut-Vandervoort
& Co., No. 448806, 1986 TTAB LEXIS 124, at *5 (rejecting extrinsic evidence
18 See id. at 11-12 (summarizing third party internet evidence).
19 See 4 TTABVUE 10. We note that Applicant’s application is based on intent to use,
and there is no evidence in the record of Applicant’s or Registrant’s actual use.

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and argument suggesting trade-channel restrictions not specified in
application).
We find that the second and third DuPont factors favor a finding of
likelihood of confusion.
D. Summary on Likelihood of Confusion
Finally, we must weigh the findings we have made on the DuPont factors
for which there has been evidence and argument in this appeal. Charger
Ventures, 64 F.4th at 1381 (“[I]t is important ... that the Board ... weigh the
DuPont factors used in its analysis and explain the results of that weighing.”).
In this case, all of the factors we have considered weigh in favor of likelihood
of confusion.
We conclude that confusion is likely between LIVIA JOLIE and
for the goods in Class 25.
Decision
The refusal to register application Ser. No. 98758658 is affirmed under
Trademark Act Section 2(d).