Kosmetika, LLC v. Daniel Campos

This Opinion is Not a
Precedent of the TTAB
Mailed: March 31, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Kosmetika, LLC
v.
Daniel Campos
_____
Cancellation No. 92084985 (consolidated)
_____
Mandana Jafarinejad, Esq. of mjIP An Intellectual Property Firm,
for Kosmetika, LLC.
Albert Bordas, P.A., for Daniel Campos.
_____
Before Greenbaum, Lebow and O’Connor,
Administrative Trademark Judges.
Opinion by Greenbaum, Administrative Trademark Judge:
This consolidated cancellation involves use of the shared term KOSMETIKA, a
German word that means “cosmetics, makeup” in English.1
1 https://en.langenscheidt.com/german-english/kosmetika (accessed March 24, 2026). The
Board may take judicial notice of translations. See, e.g., In re Weiss Watch Co., Ser. No.
86782562, 2017 WL 2876824, *4 nn.10&11 (TTAB 2017) (Board took judicial notice of
translations of German letter and word from the Langenscheidt Online German Dictionary).
As noted below, the challenged registrations also contain a translation statement to this
effect.

Cancellation No. 92084985 (consolidated)
- 2 -
Daniel Campos (“Respondent”) owns a registration on the Principal Register for
the mark KOSMETIKA BY DR. DANIEL CAMPOS (standard characters,
KOSMETIKA disclaimed) for
Shampoo-conditioners; Anti-aging cleanser; Anti-aging
creams; Anti-aging moisturizer; Anti-aging toner; Body
creams; Body lotions; Body oils; Face and body lotions;
Facial creams; Facial lotion; Facial moisturizers; Facial
oils; Hair conditioners; Hair rinses; Hair shampoo;
Moisturizing body lotions; Scented body lotions and
creams, in International Class 3,2
and a registration on the Supplemental Register for the mark KOSMĔTIKA (in
standard characters) for
Medical services, namely, elective aesthetic procedures, in
International Class 44.3
Kosmetika, LLC (“Petitioner”) seeks to cancel Respondent’s registrations on the
ground of likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based on its alleged prior common law use of the marks KOSMETIKA,
KOSMETIKARE and KOSMETIKA BEAUTY SUPPLIES since 2018 on cosmetics,
1 TTABVUE 5, ¶¶2-3, and its pending applications to register the marks
KOSMETIKA BEAUTY SUPPLIES and KOSMETIKARE for various cosmetics in
2 Reg. No. 6965443 (the “’443 registration”) issued on January 24, 2023 from an application
filed on June 10, 2021, claiming first use and first use in commerce on November 1, 2022.
The registration includes the following information about the mark: “The English translation
of ‘KOSMETIKA’ in the mark is ‘cosmetics,’” and “The name … shown in the mark identifies
‘DANIEL CAMPOS’, whose consent to register is made of record.”
3 Reg. No. 7032953 (the “’953 registration”) issued on April 18, 2023 from an application filed
on December 29, 2022, claiming first use and first use in commerce on December 1, 2022. The
registration includes the same translation statement as the ’443 registration. The letter E in
the mark includes a caron, which is among the standard character set available on the
USPTO website at https://www.uspto.gov/trademark/standard-character-set.

Cancellation No. 92084985 (consolidated)
- 3 -
International Class 3. Id. at 6, ¶6.4 Under the heading “FIRST CLAIM FOR RELIEF
UNDER SECTION 2(f),” Petitioner alleges its “KOSMETIKA Marks are inherently
distinctive and famous, have been in use in commerce and widely advertised by
Petitioner for many years, are instantly recognized by consumers as a symbol of
Petitioner and its products and services.” 1 TTABVUE 9, ¶24.
Respondent, in his answer, denied the salient allegations in the petition to cancel.
I. Record
The record consists of the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), the files of Respondent’s involved registrations.
During its testimony period, Petitioner filed the Testimony Declaration of Erika
Maestre, Petitioner’s President, with exhibits. 7 TTABVUE.
Respondent submitted no testimony or other evidence, and only Petitioner filed a
brief.
4 Petitioner appended as exhibits to the petition to cancel TSDR printouts of the
aforementioned applications. 1 TTABVUE 13-20. Except in limited circumstances, which are
not present here, an exhibit to a pleading is not evidence on behalf of the party to whose
pleading the exhibit is attached unless identified and introduced in evidence as an exhibit
during the period for the taking of testimony. Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c).
See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 317 (2025)
and authorities cited therein. Petitioner did not do so. Accordingly, the exhibits attached to
the petition to cancel are not part of the record and will not be considered.
Paragraph 6 of the petition to cancel refers to the mark KOSMETIKA BEAUTY SUPPY, but
the ESTTA cover sheet, which forms part of the petition to cancel, lists KOSMETIKA
BEAUTY SUPPLIES. See PPG Indus. Inc. v. Guardian Indus. Corp., Opp. No. 91162329,
2005 WL 608209, *2 (TTAB 2005) (“Since ESTTA’s inception, the Board has viewed the
ESTTA filing form and any attachments thereto as comprising a single document or paper
being filed with the Board.”).

Cancellation No. 92084985 (consolidated)
- 4 -
For the reasons discussed below, we deny the petition as to the ’443 registration
on the Principal Register, and grant the petition as to the ’953 registration on the
Supplemental Register.
II. Entitlement to a statutory cause of action
Entitlement to a statutory cause of action is a requirement in every inter partes
case. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303-05 (Fed. Cir. 2020);
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, 127 n.4 (2014)). As plaintiff in this consolidated proceeding, Petitioner must
prove its entitlement by a preponderance of the evidence. See, e.g., Shenzhen IVPS
Tech. Co. Ltd. v Fancy Pants Prods., LLC, Opp. No. 91263919, 2022 WL 16646840, *2
(TTAB 2022).
To establish an entitlement to a statutory cause of action, Petitioner must
demonstrate an interest falling within the zone of interests protected by the statute,
15 U.S.C. § 1064, and a reasonable belief in damage proximately caused by continued
registration of the mark. See Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067,
1070-71 (Fed. Cir. 2022); Corcamore, 978 F.3d at 1304-1307.
As will be set forth more fully below, Petitioner’s president, Ms. Maestre, testified
that Petitioner has used KOSMETIKA in connection with cosmetics since 2018.
Maestre Test. Decl., 7 TTABVUE 3-4, ¶¶3-4. And she attached exhibits comprising
examples of Petitioner’s use of KOSMETIKA, including a screenshot of Petitioner’s
online Facebook store promoting “Kosmetika Beauty Supplies” in connection with

Cancellation No. 92084985 (consolidated)
- 5 -
cosmetics, such as eyeshadow, nail polish and lipstick. Id. at 6. Because Petitioner
introduced evidence that it has used the term KOSMETIKA in connection with
cosmetics, which are, by their nature, related to elective aesthetic procedures such as
those recited in the ’953 Registration in that they are used to enhance one’s physical
appearance as cosmetics do, Petitioner has established its entitlement to a statutory
cause of action to cancel the challenged registrations.5 Monster Energy Co. v. Lo, Opp.
No. 91225050, 2023 WL 417620, *6 (TTAB 2023) (entitlement based on common law
use of mark alleged to be confusingly similar).
III. Trademark Act Section 2(d)
Section 2(d) of the Trademark Act prohibits the registration of a mark that
“[c]onsists of or comprises a mark which so resembles a mark registered in the Patent
and 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[.]” 15
U.S.C. § 1052(d). As with entitlement, Petitioner, as plaintiff in this proceeding, must
prove prior use and a likelihood of confusion by a preponderance of the evidence. See
5 We take judicial notice that “cosmetic” is defined as “a preparation (as a cream, lotion, or
powder) used to improve a person’s appearance” as well as “done or made for the sake of
appearance: such as correcting defects especially of the face,” and
“aesthetic” is defined as “done or made to change and especially to enhance a person’s
appearance.” www.merriam-webster.com/dictionary/cosmetic and www.merriam-
webster.com/dictionary/aesthetic (both accessed March 27, 2026). See Univ. of Notre Dame
du Lac v. J.C. Gourmet Food Imps. Co., 1982 WL 52012, *3 (TTAB 1982), aff’d, 703 F.2d 1372
(Fed. Cir. 1983); In re Red Bull GmbH, Ser. No. 75788830, 2006 WL 936983, *3 (TTAB 2006).

Cancellation No. 92084985 (consolidated)
- 6 -
Cerveceria Centroamericana, S.A. v. Cerveceria India Inc., 892 F.2d 1021, 1023 (Fed.
Cir. 1989).
Petitioner’s likelihood of confusion claim against each registration is based on
alleged prior common law rights in its asserted mark KOSMETIKA for “beauty
supply products and services” and “cosmetic products.”6
A. Petitioner’s Section 2(d) claim against the ’443 registration on the
Principal Register
For purposes of priority, “proprietary rights may arise from a prior registration,
prior trademark or service mark use, prior use as a trade name, prior use analogous
to trademark or service mark use, or any other use sufficient to establish proprietary
rights.” Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002).
To prevail on a claim of likelihood of confusion based on ownership of common law
rights in a mark, the mark relied upon must be distinctive, inherently or otherwise,
and the petitioner must show priority of use. Otto Roth & Co. v. Universal Foods
Corp., 640 F.2d 1317, 1332 (CCPA 1981); see also Towers v. Advent Software, Inc.,
913 F.2d 942, 945 (Fed. Cir. 1990) (rule of Otto Roth applicable to cancellation
proceedings). We consider first the distinctiveness of Petitioner’s asserted common
law mark KOSMETIKA.
6 Petitioner asserts in its brief that one of its pleaded applications registered during the
course of this proceeding. 8 TTABVUE 11. However, Petitioner did not make of record any
registration, and as noted above, Petitioner did not make of record during its assigned
testimony period any pleaded application. The “Board does not take judicial notice of
applications or registrations residing in the [USPTO].” Edom Labs Inc. v. Lichter, Opp. No.
91193427, 2012 WL 1267961, *4 (TTAB 2012). If Petitioner wished to rely on the registration
that allegedly resulted from one its pleaded applications, it was incumbent upon Petitioner
to make it of record during trial. See Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d).

Cancellation No. 92084985 (consolidated)
- 7 -
As noted above, “kosmetika” is the German word for “cosmetics.” Moreover,
“kosmetika” and “cosmetics” look and sound so similar that the average consumer in
the United States, whether familiar with the German language or not, automatically
will equate the two, and when they encounter “kosmetika” in connection with
cosmetics, they immediately will consider the term to be descriptive of the goods
rather than a distinctive term that is source-indicating. See In re Optica Int’l, 1977
WL 22617, *2 (TTAB 1977) (finding OPTIQUE descriptive of eyeglasses, stating: “In
the instant case, there is no question but that ‘OPTIQUE’ is the French equivalent of
the English word ‘OPTIC.’ Moreover, the resemblance between ‘OPTIQUE’ and
‘OPTIC’ is so evident in both sound and appearance that the average member of the
public in this country, whether familiar with the French language or not will
automatically equate the two.”). As such, we find Petitioner’s asserted mark
KOSMETIKA not inherently distinctive for cosmetics. Therefore, under the rule of
Otto Roth, Petitioner must show KOSMETIKA has acquired distinctiveness.
Moreover, because the asserted mark KOSMETIKA is, at minimum, highly
descriptive of cosmetics, Petitioner has a commensurately high burden to
demonstrate that it has acquired distinctiveness. In re Steelbuilding.com, 415 F.3d
1293, 1300 (Fed. Cir. 2005) (“burden of showing acquired distinctiveness increases
with the level of descriptiveness; a more descriptive term requires more evidence of
secondary meaning.”).
“[A] mark has acquired distinctiveness … if .., in the minds of the public, the
primary significance of [the mark] is to identify the source of the product rather than

Cancellation No. 92084985 (consolidated)
- 8 -
the product itself.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 211
(2000) (citations and internal quotation marks omitted).
In determining whether a mark has acquired distinctiveness, the Board considers
factors such as (1) association of the mark with a particular source by actual
purchasers (typically measured by consumer surveys); (2) length, degree and
exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and
number of customers; (5) intentional copying; and (6) unsolicited media coverage of
the product embodying the mark. Converse, Inc. v. ITC, 909 F.3d 1110, 1120 (Fed.
Cir. 2018); see also In re SnoWizard, Ser. No. 87134847, 2018 WL 6923620, *5 & n.8
(TTAB 2018) (holding Converse applicable to Board proceedings). No single factor is
determinative, and “[a]ll six factors are to be weighed together in determining the
existence of secondary meaning.” Converse, 909 F.3d at 1120.
The only testimony touching on acquired distinctiveness of Petitioner’s asserted
mark KOSMETIKA appears in one sentence of Ms. Maestre’s testimony declaration,
with no supporting documentary evidence:
Kosmetika, LLC has undertaken great efforts to market,
promote and sell cosmetic products that bear the
KOSMETIKA mark in such a manner that the public
recognizes the KOSMETIKA mark as signifying cosmetics
that come exclusively from Kosmetika, LLC.
7 TTABVUE 3, ¶7.
The testimony comprises a conclusory statement with no details about the “great
efforts” Petitioner purportedly has “undertaken,” and no reason why “the public
recognizes” the asserted mark KOSMETIKA as identifying cosmetics from Petitioner.
Cf., e.g., Converse, 909 F.2d at 1120.

Cancellation No. 92084985 (consolidated)
- 9 -
Even if Petitioner did not bear a high burden, see Steelbuilding.com, 415 F.3d at
1300, on this record, Petitioner has not demonstrated that it acquired distinctiveness
at all in the asserted mark KOSMETIKA for cosmetics. Consequently, under the rule
of Otto Roth, Petitioner has not established use in a distinctive mark, and it cannot
prevail on its likelihood of confusion claim against the ’443 registration on the
Principal Register for the mark KOSMETIKA BY DR. DANIEL CAMPOS for various
cosmetics in Class 3.
B. Petitioner’s Section 2(d) claim against the ’953 registration on the
Supplemental Register
We engage in a different analysis for Petitioner’s common law Section 2(d) claim
against the ’953 registration, which is on the Supplemental Register. A Supplemental
Register registration is evidence only of the fact that it issued on the date printed on
its face—it is not entitled to the presumptions afforded to Principal Register
registrations under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b),7 and it is
incompetent as evidence of Respondent’s first use or constructive first use. 15 U.S.C.
§§ 1057(b), 1094; see Nazon v. Ghiorse, Opp. No. 91216729, 2016 WL 3876810, *2
(TTAB 2016) ((“A Supplemental Register registration is evidence of nothing more
than the fact that the registration issued on the date printed thereon. It is not entitled
to the presumptions of Section 7(b) of the Trademark Act. Nor can it be considered as
7 Section 7(b) of the Trademark Act provides: “Certificate as prima facie evidence. A certificate
of registration of a mark upon the principal register provided by this chapter shall be prima
facie evidence of the validity of the registered mark and of the registration of the mark, of
the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered
mark in commerce on or in connection with the goods or services specified in the certificate,
subject to any conditions or limitations stated in the certificate.”

Cancellation No. 92084985 (consolidated)
- 10 -
evidence of a proprietary right in the registered mark.”) (internal citations omitted)).
Registration on the Supplemental Register also constitutes a concession that the
involved mark was merely descriptive at the time of registration. See In re Clorox Co.,
578 F.2d 305, 308 (CCPA 1978); Quaker State Oil Ref. Corp. v. Quaker Oil Corp., 453
F.2d 1296, 1299 (CCPA 1972).
As the Board explained in State Permits, Inc. v. Fieldvine, Inc., Can. No. 92075095,
2024 WL 3825297, *10 (TTAB 2024), if Respondent has not demonstrated that its
own admittedly descriptive mark on the Supplemental Register has acquired
distinctiveness, to establish priority under Section 2(d) of the Trademark Act,
Petitioner need only prove that it is the prior chronological user of a confusingly
similar mark. See also Books on Tape, Inc. v. Booktape Corp., 836 F.2d 519, 520 (Fed.
Cir. 1987). “‘The statute does not require the anomalous result that a junior user is
entitled to keep its Supplemental Registration for a descriptive term in which it has
not established secondary meaning (as evidenced by registration on the
Supplemental Register) because a prior user cannot show secondary meaning in
that term either.”’ State Permits, 2024 WL 3825297, *16 (quoting Books on Tape, 836
F.2d at 520) (emphasis in original). Consequently, if Respondent’s mark has acquired
distinctiveness, Petitioner may prevail only if it shows that it has prior use of an
inherently distinctive mark or that its pleaded mark first acquired distinctiveness.
See id. at *10. If, however, Respondent’s mark has not acquired distinctiveness,
Petitioner need only show prior use of the asserted mark. Id.

Cancellation No. 92084985 (consolidated)
- 11 -
In this case, because Respondent submitted no testimony or evidence, Respondent
did not establish a first use date, let alone that KOSMĔTIKA has acquired
distinctiveness as a source identifier of the “medical services, namely elective
aesthetic procedures” identified in the ’953 registration. Accordingly, Petitioner need
only show use of the asserted mark KOSMETIKA with its pleaded goods, i.e.,
cosmetics.
1. Petitioner’s testimony and evidence of prior use
In considering the testimony and evidence of priority, “we look at the evidence as
a whole, as if each piece of evidence were part of a puzzle which when fitted together,
establishes prior use.” See West Fla. Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31
USPQ2d 1660, 1663 (Fed. Cir. 1994). Oral testimony, if sufficiently probative,
normally is sufficient to establish priority of use, Powermatics, Inc. v. Globe Roofing
Prods. Co., 341 F.2d 127, 130 (CCPA 1965), and the testimony of a single witness may
be adequate to establish priority. See Exec. Coach Builders, Inc. v. SPV Coach Co.,
Opp. No. 91212312, 2017 WL 3034059, *11 (TTAB 2017).
Ms. Maestre’s entire testimony is as follows (verbatim):8
1. I am over the age of 18 and I am the President of
Kosmetika, LLC, the Opposer in this proceeding. The facts
contained in this declaration are known to me personally
or are based on my review of documents created and kept
in the ordinary course of business, and if called as a
witness, I could and would competently testify to them.
2. Kosmetica, LLC is a California limited liability
corporation organized and existing under the laws of the
8 Typographical errors retained from the original.

Cancellation No. 92084985 (consolidated)
- 12 -
state of California, with a principle place of business at
8415 Carob Street, Fontana, California 92335.
3. KOSMETIKA, LLC launched in January 22, 2018. Since
the launch Of its website that year, the company has been
continually using its KOSMETIKA trademark in relation
to beauty supply products and services. See Exhibit A.
4. In 2018, the company expanded our services under the
KOSMETIKA brand to further include its own line of
branded cosmetic products. Today, we continue to offer and
provide this broad range of related services to our clients
throughout the United States, Mexico and China.
5. Kosmetika, LLC currently uses the KOSMETIKA for the
sale of cosmetics through a variety of distribution channels,
including online ecommerce sales through its website
https://kosmetikabeautysupplies.com/ as shown in Exhibit
B, as well as through traditional channels of trade for
cosmetics, including on-premises retailers and third-party
retail platforms.
6. Cosmetics produced by Kosmetika, LLC has been offered
and advertised continuously to the public throughout the
United States through various channels of trade since at
least as early as April 2018.
7. Kosmetika, LLC has undertaken great efforts to market,
promote and sell cosmetic products that bear the
KOSMETIKA mark in such a manner that the public
recognizes the KOSMETIKA mark as signifying cosmetics
that come exclusively from Kosmetika, LLC.
7 TTABVUE 2-3.
“Exhibit A” comprises two pages: the above-mentioned screenshot of Petitioner’s
online Facebook store featuring “Kosmetika Beauty Supplies” such as eyeshadow,
nail polish and lipstick, and a copy of a “Fictitious Business Name Statement” from
San Bernardino County, California, for “Kosmetika Beauty Supplies” dated January
22, 2018, identifying Leonardo B. Maestre and Erika Maestre as the “Individual

Cancellation No. 92084985 (consolidated)
- 13 -
Registrant[s]”. Id., pp. 6-7. “Exhibit B” comprises one page: a screenshot from the
ICANN domain registry for Petitioner’s website, showing a June 19, 2019 creation
date. Id., p. 9.
Considering the testimony and evidence in its entirety, we find Petitioner has
demonstrated use of its asserted mark KOSMETIKA in connection with cosmetics
since 2018. Because Petitioner has established use since 2018 and Respondent has
not established any use, much less first use, of its KOSMĔTIKA mark registered on
the Supplemental Register, we find Petitioner has common law priority in its asserted
mark KOSMETIKA for cosmetics.
2. Likelihood of confusion
The determination under Section 2(d) involves 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) (setting forth factors to be considered,
hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
F.3d 1311, 1315 (Fed. Cir. 2003).
We consider each DuPont factor for which there is evidence and argument. See,
e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). “Not all of the
DuPont factors are necessarily relevant or of equal weight in a given case, and any
one of the factors may control a particular case. … Only the DuPont factors of
significance to the particular mark need be considered in the likelihood of confusion
analysis.” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362 (Fed.
Cir. 2022) (internal citation and punctuation omitted).

Cancellation No. 92084985 (consolidated)
- 14 -
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See
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 services] and differences
in the marks.”).
a. Similarity or dissimilarity of the marks
Under this DuPont factor, we compare the marks in their entireties as to
appearance, sound, connotation and commercial impression. See Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 1371 (Fed. Cir.
2005).
Respondent’s mark is KOSMĔTIKA in standard characters. With the exception of
the caron, Respondent’s mark is identical to Petitioner’s asserted mark
KOSMETIKA, for which Petitioner has established prior use.
b. Similarity or dissimilarity of the goods and services
Under this DuPont factor, Petitioner’s common law rights are limited to the actual
goods on which it uses its asserted mark KOSMETIKA; by contrast, Respondent’s
services encompass all services as they are recited in the registration. See Stone Lion
Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); see also
Octocom Sys. Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 943 (Fed. Cir. 1990). As
discussed, Petitioner has established priority for cosmetics. The ’953 registration
identifies “medical services, namely, elective aesthetic procedures.”

Cancellation No. 92084985 (consolidated)
- 15 -
It is not necessary that the goods and services be identical or competitive, or even
that they move in the same channels of trade, to support a finding of likelihood of
confusion. Rather, it is sufficient that they are related in some manner, or that the
circumstances surrounding their marketing are such that they would or could be
encountered by the same persons in situations that would give rise, because of the
similarity of the marks, to a mistaken belief that they originate from the same source
or that there is an association or connection between the respective sources of the
goods and services. See Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
1360 (Fed. Cir. 2012).
As we found above in our discussion of Petitioner’s entitlement, cosmetics and
elective aesthetic services are, by their nature, related, in that both are used to
enhance one’s physical appearance.
IV. Conclusion
Petitioner has not demonstrated that it acquired distinctiveness in its asserted
mark KOSMETIKA for cosmetics. Consequently, under the rule of Otto Roth,
Petitioner has not established use in a distinctive mark, and it cannot prevail on its
likelihood of confusion claim against the ’443 registration for the mark KOSMETIKA
BY DR. DANIEL CAMPOS for various cosmetics in Class 3.
We reach a different conclusion as to Petitioner’s Section 2(d) claim against the
’953 registration. Respondent’s standard character mark KOSMĔTIKA is almost
identical to the asserted mark KOSMETIKA for which Petitioner demonstrated prior
use. We also find the goods for which Petitioner established prior use, i.e., cosmetics,

Cancellation No. 92084985 (consolidated)
- 16 -
by their nature related to the services identified in the ’953 registration: medical
services, namely, elective aesthetic procedures in Class 44. On this record, we
conclude there is a likelihood of confusion between Petitioner’s prior used asserted
mark KOSMETIKA for cosmetics, and the mark and services identified in the ’953
registration.
Decision: The petition to cancel is denied as to the ’443 registration, and granted
as to the ’953 registration.