ES International

This Opinion is Not a
Precedent of the TTAB
Mailed: July 31, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re ES International
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Serial No. 98925014
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Jin J. Kim of ACI Law Group, PC for ES International.
Christian Martin, Trademark Examining Attorney, Law Office 134,
Sophia Kim, Managing Attorney.
_____
Before Pologeorgis, Larkin, and Thurmon,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
ES International (“Applicant”) seeks registration on the Principal Register of the
standard-character mark APOTHE for “Non-medicated hair treatment preparations
for cosmetic purposes; Non-medicated skin care preparations, namely, creams,
lotions, gels, and toners; Skin toners; Facial emulsions; Ampoules sold filled with non-
medicated serums for use on hair, skin, and lips for cosmetic purposes; Skin cream;
Foam cleansers for personal use; Sun screen preparations” in International Class 3.1
1 Application Serial No. 98925014 was filed on December 27, 2024 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed first use of the mark at

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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that the
mark so resembles the following two marks registered on the Supplemental Register
as to be likely to cause confusion when used in connection with the goods identified
in the application: (1) the standard-character mark L’APOTHE for “Hair care
preparations; Hair conditioners; Hair conditioning bars; Customized hair
conditioners; Customized hair conditioning bars; Hair care lotions; Hair oils; Hair
pomades; Hair shampoo; Non-medicated skin care preparations; Non-medicated skin
care creams and lotions” in International Class 3,2 and (2) the mark shown below
for “Aromatherapy sprays comprised of essential oils; Body butter; Body oils; Lip
balm; Skin care preparation, namely, body polish; Essential oil-based creams for
aromatherapy use; Scented body spray” in International Class 3.3
least as early as June 3, 2022 and first use of the mark in commerce at least as early as
November 6, 2023.
2 Registration No. 6914651 (the “’651 Registration”) issued on November 29, 2022. The owner
of the ’651 Registration translated the mark as “The Apothecary.” The ’651 Registration also
covers services in International Classes 35 and 41, but the Examining Attorney focuses on
the Class 3 goods.
3 Registration No. 7361842 (the “’842 Registration”) issued on April 16, 2024. The ’651 and
’842 Registrations are separately owned. The owner of the ’842 Registration translated the
word “Apothe” in the mark as “Apothecary” and disclaimed the exclusive right to use
“handmade luxury” apart from the mark as shown.

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When the Examining Attorney made the refusal final, Applicant requested
reconsideration, which was denied, and then appealed. Applicant and the Examining
Attorney have filed briefs.4 We affirm the refusal to register.
I. Prosecution History and Record on Appeal5
We briefly summarize below the prosecution history of the application because it
provides useful background to our disposition of the appeal.
Applicant originally applied to register its mark for goods identified as “Non-
medicated hair treatment preparations for cosmetic purposes; Skin care
preparations; Skin toners; Facial emulsions; Cosmetic ampoules; Skin cream; Foam
cleansers for personal use; Sun screen preparations.”6 The Examining Attorney
issued an Office Action refusing registration based on the marks shown in the ’651
and ’842 Registrations, and requiring an amendment to Applicant’s identification of
goods.7 The Examining Attorney made of record USPTO electronic record regarding
the cited registrations,8 pages from rocketlanguages.com regarding the French
4 Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear. Applicant’s brief appears at 6
TTABVUE and the Examining Attorney’s brief appears at 8 TTABVUE.
5 Citations in this opinion to the application record are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO”).
6 December 27, 2024 Application at 1.
7 June 17, 2025 Office Action at 1-8.
8 Id. at 9-12.

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definite articles “le” and “la,”9 and a definition of “apothecary” from
yourdictionary.com.10
Applicant responded to the Office Action by amending its identification of goods
to read “Non-medicated hair treatment preparations for cosmetic purposes; Non-
medicated skin care preparations, namely, creams, lotions, gels, and toners; Skin
toners; Facial emulsions; Ampoules sold filled with non-medicated serums for use on
hair, skin, and lips for cosmetic purposes; Skin cream; Foam cleansers for personal
use; Sun screen preparations,” and by arguing against the refusal to register.11
The Examining Attorney then issued an Office Action accepting Applicant’s
amendment to its identification of goods, but making final the refusal to register.12
The Examining Attorney made of record pages from lingoda.com regarding the use of
French definite articles,13 and pages from the websites at aveda.com, burtsbees.com,
neutrogena.com, avon.com, and clinique.com that the Examining Attorney claimed
show that the goods identified in the ’842 Registration and in the application are
related.14
Applicant then requested reconsideration. In its Request for Reconsideration,
Applicant argued against the refusal to register, and provided a list of registrations
9 Id. at 13-20.
10 Id. at 21-24.
11 July 10, 2025 Response to Office Action at 5-15.
12 August 11, 2025 Final Office Action at 1-10.
13 Id. at 11-15.
14 Id. at 16-108.

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of APOTH-formative marks,15 which Applicant claimed showed “that marks
containing the element ‘APOTH-’ are widely adopted by unrelated entities in the
cosmetics and personal care field.”16
The Examining Attorney denied Applicant’s Request for Reconsideration, making
of record USPTO electronic records regarding third-party registrations that the
Examining Attorney claimed showed that the involved goods “are of a kind that may
emanate from a single source under a single mark.”17 The Examining Attorney also
objected to the list of third-party registrations in Applicant’s Request for
Reconsideration on the ground that “the mere submission of a list of registrations
does not make such registrations part of the record,” and advised Applicant that it
needed to have “submit[ted] copies of the registrations, or the complete electronic
equivalent from the USPTO’s automated systems, prior to appeal.”18 The appeal was
resumed, 5 TTABVUE, and is now ready for decision.
II. Evidentiary Objections
Before proceeding to the merits of the appeal, we must address two evidentiary
objections. In its brief, Applicant states that in its Request for Reconsideration, it
“made of record a comprehensive list of numerous live registrations not only in . . .
Class 003 but also in related classes . . . that incorporate the root ‘APOTH-’ or
‘APOTHE,’” including the marks “‘APOTHEKIT’, ‘APOTHEKE’, ‘ILAPOTHECARY’,
15 October 13, 2025 Request for Reconsideration at 10-15.
16 Id. at 5.
17 December 2, 2025 Denial of Request for Reconsideration at 2, 4-35.
18 Id. at 2.

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‘APOTHEKERRI’, ‘APOTHECARE ESSENTIALS’, ‘APOTHEQUE LIFESTYLE
SPA’, and ‘APOTHEPURITY’, among many others,” 6 TTABVUE 4, and that “[w]hile
the previously submitted list (Exhibit A) established the sheer volume of such
marks,” Applicant “hereby attaches, as Exhibit A-1, official TSDR printouts (or
equivalent electronic copies) for a representative sample of the registrations already
listed in Exhibit A to facilitate the Board’s review and to ensure compliance with the
evidentiary format preferred by the Board.” Id. (emphasis supplied by Applicant;
citation omitted). Under the argument heading “The Term ‘APOTHE’ is
Conceptually Weak and Diluted in the Cosmetic Industry (The ‘Crowded
Field’ Theory),” id. (emphasis supplied by Applicant), Applicant cites Exhibits A
and A-1 to show that “[i]n the cosmetic and personal care industry . . . this term is
ubiquitous, used by numerous businesses to evoke an image of traditional, artisanal,
or pharmaceutical-grade formulations.” Id.
The Examining Attorney acknowledges that in Applicant’s “Request for
Reconsideration, Applicant attached a table of marks, including, inter alia, their
registration date and number,” 8 TTABVUE 15 (record citation omitted), but argues
that “the mere submission of a list of registrations does not make such registrations
part of the record,” and that “[t]o make third-party registrations part of the record,
an applicant must submit copies of the registrations, or the complete electronic
equivalent from the USPTO’s automated systems, prior to appeal.” Id. (citations
omitted). The Examining Attorney notes the “timely object[ion] to Applicant’s list of

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marks on this basis” in the denial of Applicant’s Request for Reconsideration, id.
(record citation omitted), and maintains that objection on appeal. Id.
The Examining Attorney further argues that
[s]ubsequently, in its appeal brief, Applicant attached as
Exhibit A-1 seven registrations. . . . The use of these
registrations as evidence is hereby objected to, as they were
not properly made of record prior to appeal. . . . If Applicant
wished to introduce new evidence at the time of or during
appeal, Applicant had the option to request the Board to
suspend the appeal and remand the case. . . . Applicant did
not do so. Consequently, neither the evidence attached to
the Request for Reconsideration nor the evidence attached
to the Appeal Brief is properly of record, and should not be
considered.
Id. (citations omitted).
We sustain the Examining Attorney’s objections. A “mere list of registrations does
not serve to introduce the registrations into evidence and thus has no probative
value.” Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890,
at *15 (TTAB 2022) (citing In re Peace Love World Live LLC, No. 86705287, 2018 WL
3570240, at *17 (TTAB 2018)). As discussed above, the Examining Attorney advised
Applicant during prosecution that “the mere submission of a list of registrations does
not make such registrations part of the record,”19 and that to make third-party
registrations of record, Applicant “must submit copies of the registrations, or the
complete electronic equivalent from the USPTO’s automated systems, prior to
appeal.”20 Cf. Peace Love World Live, 2018 WL 3570240, at *17 (failure to advise an
19 December 2, 2025 Denial of Request for Reconsideration at 2 (citations omitted).
20 Id. (citations omitted).

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applicant during prosecution of the insufficiency of a list of third-party registrations
may result in their consideration on appeal). Applicant could have corrected its error,
but took no steps to do so through a request for remand in the manner discussed
below. We have given the list of third-party registrations referred to in Applicant’s
brief no consideration in our decision.
As to the seven third-party registrations attached as Exhibit A-1 to Applicant
brief, 6 TTABVUE 8-21, “[t]he record in an application should be complete prior to
the filing of an appeal.” In re Jimenez, No. 97551823, 2025 WL 3126703, at *2 (TTAB
2025) (citing Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d)). As the Examining
Attorney notes, 8 TTABVUE 15, if Applicant wished to make these registrations of
record, the proper course for Applicant was to request a remand of the application to
the Examining Attorney for consideration of them, In re Weiss, No. 88621608, 2023
WL 3617597, at *2 (TTAB 2023) (citing Trademark Rule 2.142(b)), but Applicant did
not do so. We have given the seven third-party registrations attached to Applicant’s
brief no consideration in our decision.
III. Analysis of Likelihood of Confusion Refusal
“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
of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of

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confusion factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361
(CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. 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).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because 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.” DC Comics
v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted).
According to Applicant,
[t]he issue on appeal is whether there is a likelihood of
confusion between Applicant’s mark “APOTHE” and the
cited registrations “L’APOTHE” and “APOTHE
HANDMADE LUXURY” when used on related cosmetic
goods, considering the extensive third-party use and
registration of similar terms in the marketplace which
narrows the scope of protection for the shared element.
6 TTABVUE 3 (emphasis supplied by Applicant). Applicant argues that “[u]nder the
relevant DuPont factors, particularly the sixth factor (the number and nature of
similar marks in use on similar goods), the differences between the marks are
sufficient to distinguish them in a crowded field.” Id. at 3-4. Applicant devotes its
brief to the sixth factor, id. at 4-6, and the key first factor. Id. at 5-6. Applicant does
not address the key second factor.
We will focus our analysis under the DuPont factors on the cited ’651 Registration
of the standard-character L’APOTHE mark because this mark is the more similar of

Serial No. 98925014
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the two cited marks to Applicant’s mark and because the goods identified in the ’651
Registration are more similar to the goods identified in the application than are the
goods in the cited ’842 Registration. If we find a likelihood of confusion with respect
to the L’APOTHE mark shown in the ’651 Registration for the goods identified
therein, we need not consider the likelihood of confusion with respect to the stylized
mark shown in the ’842 Registration for the different goods identified therein. See,
e.g., Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901, at *17 (TTAB 2024).
A. The Strength or Weakness of the Cited Mark
We begin with the issue of the possible weakness of the cited APOTHE mark
because any such weakness may affect the scope of protection to which the mark is
entitled. Id. Under the sixth DuPont factor, which considers the “number and nature
of similar marks in use on similar goods,” DuPont, 476 F.2d at 1361, “[t]here are two
prongs of analysis for a mark’s strength . . .: conceptual strength and commercial
strength.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023) (citation
omitted). “Conceptual strength is a measure of a mark’s distinctiveness . . . and
distinctiveness is often classified in categories of generally increasing
distinctiveness[:] . . . (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5)
fanciful.” Id. (citation, quotation, and quotation marks omitted). “Distinctiveness is
relevant to a mark’s overall strength in the likelihood of confusion analysis.” Id.
(citation omitted). “Commercial strength, on the other hand, is the marketplace
recognition value of the mark. [It] is a question of whether consumers in fact associate
the . . . mark with a unique source[.]” Id. (quotation and quotation marks omitted).

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Applicant argues that the cited marks are conceptually weak, based on the third-
party registrations of APOTH-formative marks discussed above in our evidentiary
rulings, and the coexistence of the two cited marks inter se. 6 TTABVUE 4-6.
Applicant argues that “extensive third-party registrations constitute powerful
evidence that a shared term is conceptually weak and therefore entitled to only a
narrow scope of protection,” id. at 4-5 (citing Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 1338–39 (Fed. Cir. 2015)), and points to Exhibits A and A-1 as
evidence of extensive third-party registrations. Id. at 4. As discussed above, however,
we have sustained the Examining Attorney’s objections to Applicant’s list of
registrations and the seven untimely registration certificates, leaving Applicant with
no third-party registrations in the record.21
Applicant also argues that “[p]erhaps the most compelling evidence lies in the
Register itself” because the “USPTO has registered both “L’APOTHE” and
“APOTHE HANDMADE LUXURY” for identical or highly related Class 003 goods.”
Id. at 6 (emphasis supplied by Applicant). According to Applicant, “[t]he fact that
the Office allowed these two marks to coexist confirms that the scope of
protection for ‘APOTHE’ is extremely narrow,” and “[t]he Office has implicitly
21 By definition, the cited ’651 and ’842 Registrations are not “third-party registrations,” cf.
Made in Nature, 2022 WL 2188890, at *15, but even if we treated them as such, two
registrations “are not enough to show dilution of a mark, nor [do] they show that there is a
‘crowded field’ of sources utilizing these similar terms.” In re Textnow Inc., No. 98231457,
2026 WL 1920576, at *9 (TTAB 2026) (citing In re Embiid, No. 88202890, 2021 WL 2285576,
at *19 (TTAB 2021) (“three third-party registrations [are] a far cry from the large quantum
of evidence of third-party use and third-party registrations that was held to be significant in
both Jack Wolfskin [Ausrustung Fur Draussen GmbH & Co. v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 1371 (Fed. Cir. 2015)] and Juice Generation.”)).

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acknowledged that the addition of ‘L’ (in one case) or ‘HANDMADE LUXURY’ (in the
other) is sufficient to distinguish the marks.” Id. (emphasis supplied by Applicant).
“It is axiomatic that the Board must assess each mark on its own facts and record,”
In re Korn Ferry, No. 90890949, 2024 WL 3219482, at *5 (TTAB 2024) (quotation
marks omitted) (citing In re Nett Designs Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001)),
and that “the prior decisions and actions of other trademark examining attorneys in
registering other marks are not binding upon the USPTO or the Board.” Id. (citing In
re Dolce Vita Footwear, Inc., No. 88554717, 2021 WL 2285577, at *2 n.6 (TTAB
2021) (citing In re USA Warriors Ice Hockey Program, Inc., No. 86489116, 2017 WL
2572815, at *4 n.10 (TTAB 2017)). “Each case is decided on its own facts, and each
mark stands on its own merits,” id. (citation omitted), and “the existence of
confusingly similar marks already on the register will not aid an applicant to register
another confusingly similar mark.” In re Morinaga Nyugyo K.K., No. 86338392, 2016
WL 5219811, at *8 (TTAB 2016) (quoting Lily Pulitzer, Inc. v. Lilli Ann Corp., 376
F.2d 324, 325 (CCPA 1967)).
Although Applicant did not show any third-party uses of similar marks on similar
goods under the sixth DuPont factor, we must take into account that the two cited
marks are both registered on the Supplemental Register, which is an admission by
the respective registrants that the cited marks were not inherently distinctive when
the ’651 Registration issued in 2022 and the ’842 Registration issued in 2024. In re
Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731, at *4 (TTAB 2025)
(citing State Permits, Inc. v. Fieldvine, Inc., No. 92075095, 2024 WL 3825297, at *12

Serial No. 98925014
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(TTAB 2024)). Registration on the Supplemental Register is “prima facie evidence
that, at least at the time of registration, the registered mark was merely descriptive,”
In re Highlights for Children, Inc., No. 85838981, 2016 WL 1380729, at *4 (TTAB
2016) (quotation and quotation marks omitted), and “[i]t is well-established that a
mark registered on the Supplemental Register would be categorized as weak . . . .” In
re Medline Indus., Inc., No. 87680078, 2020 WL 1485709, at *9 (TTAB 2020) (citation
omitted). Accordingly, we find that the L’APOTHE mark shown in the ’651
Registration is conceptually weak.
But weak marks, including marks registered on the Supplemental Register, may
be entitled to protection under Section 2(d). See, e.g., In re Rsch. & Trading Co., 793
F.2d 1276, 1278 (Fed. Cir. 1986) (“the Board correctly applied the ROPELOCK
registration on the Supplemental Register as a reference in terms of section
2(d) against the application for registration of ROPELOK on the Principal Register.
It is not material whether or not registration on the Supplemental Register implies
that there is a degree of descriptiveness to that mark, as appellant argues. Such
registration may be cited under section 2(d) in a determination of likelihood of
confusion, an inquiry separate from that of descriptiveness.”) (citing In re Clorox Co.,
578 F.2d 305, 308-09 (CCPA 1978) (STAIN ERASER registered on the Supplemental
Register for a stain remover barred registration on the Principal Register of ERASE
for a laundry soil and stain remover)); Morinaga Nyugyo, 2016 WL 5219811, at *5
(“there is no categorical rule that citation of registrations on the Supplemental
Register is limited to registrations of substantially identical marks for substantially

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similar goods, or that a different test for likelihood of confusion should be applied in
such cases”) (quotation and quotation marks omitted). Accordingly, notwithstanding
the conceptual weakness of the L’APOTHE mark reflected by its registration on the
Supplemental Register, “the fact that it is registered on the Supplemental Register
is enough for it to ground the ex parte refusal of an application for registration of a
similar mark for use on the same or closely related goods or services.” Id. at *9 (citing
Rsch. & Trading, 793 F.2d at 1278; Towers v. Advent Software, Inc., 913 F.2d 942,
946 (Fed. Cir. 1990)). We thus turn now to a determination of whether Applicant’s
APOTHE mark is a “similar mark for use on the same or closely related goods . . . .”
Id.
B. Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Consumers
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” In re Detroit
Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018). “This factor considers whether ‘the
consuming public may perceive [the goods or services] as related enough to cause
confusion about the source or origin of the goods or services.’” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “In analyzing the [goods], the Board
considers ‘[t]he similarity or dissimilarity and nature of the [goods] as described in
an application or registration.’” In re OSF Healthcare Sys., No. 88706809, 2023 WL
6140427, at *4 (TTAB 2023) (quoting Embiid, 2021 WL 2285576, at *10).

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The goods “need not be identical or even competitive to find a likelihood of
confusion.” Id. (quotation and quotation marks omitted).22 “They need only be ‘related
in some manner and/or if the circumstances surrounding their marketing are such
that they could give rise to the mistaken belief that [they] emanate from the same
source.” Id. (quotation and quotation marks omitted).
The relatedness of goods or services may be established based on (1) the language
of the involved identifications of goods or services, which may show, on the face of the
identifications, that the goods or services are literally or legally identical, or are
otherwise intrinsically related, and (2) evidence of third-party uses and registrations,
which may show that the identified goods or services are commonly offered by the
same entity under the same mark. See, e.g., id. Here, the language of the
identifications of goods establishes relatedness, and we need not consider the
Examining Attorney’s third-party registration evidence of relatedness.23
The application covers “Non-medicated hair treatment preparations for cosmetic
purposes; Non-medicated skin care preparations, namely, creams, lotions, gels, and
22 The “Examining Attorney need not prove, and we need not find, similarity as to each [good]
listed in the description of [goods]” in Class 3 in the application. OSF Healthcare, 2023 WL
6140427, at *5 (citation omitted). “It is sufficient for a finding of likelihood of confusion if
relatedness is established for any item encompassed in the identification of goods in a
particular class in an application.” Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *3
(citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981)).
“[R]egistration must be refused in a particular class if Applicant’s mark for any of its
identified goods or services in that class is likely to cause confusion with the Registrant’s
mark for any of its identified goods or services.” In re Info. Builders Inc., No. 87753964, 2020
WL 2094122, at *3 (TTAB 2020).
23 We note in that regard that “Applicant does not contest the legal identity of the parties’
respective goods,” Info. Builders, 2020 WL 2094122, at *4, but instead effectively concedes
their similarity by describing them as “related cosmetic goods. . . .” 6 TTABVUE 3.

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toners; Skin toners; Facial emulsions; Ampoules sold filled with non-medicated
serums for use on hair, skin, and lips for cosmetic purposes; Skin cream; Foam
cleansers for personal use; Sun screen preparations.” The ’651 Registration covers
“Hair care preparations; Hair conditioners; Hair conditioning bars; Customized hair
conditioners; Customized hair conditioning bars; Hair care lotions; Hair oils; Hair
pomades; Hair shampoo; Non-medicated skin care preparations; Non-medicated skin
care creams and lotions.”
The goods identified in the ’651 Registration as “Non-medicated skin care
preparations” encompass the goods identified in the application as “Non-medicated
skin care preparations, namely, creams, lotions, gels, and toners,” and the goods
identified in the ’651 Registration as “Hair care preparations” encompass the goods
identified in the application as “Non-medicated hair treatment preparations for
cosmetic purposes.” These counterpart goods are legally identical. Because the goods
identified in the application and the ’651 Registration are legally identical in part,
the second DuPont factor strongly supports a conclusion that confusion is likely. OSF
Healthcare, 2023 WL 6140427, at *9.
The third DuPont factor “considers ‘[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.’” Detroit Athletic Co., 903 F.3d at 1308 (quoting
DuPont, 476 F.2d at 1361). “Because the [goods] described in the application and the
[’651] [R]egistration are legally identical in part, we must presume that the channels
of trade and classes of purchasers are the same as to those . . . identical [goods].” OSF
Healthcare, 2023 WL 6140427, at *9 (quoting Monster Energy Co. v. Lo, No. 91225050,

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2023 WL 417620, at *8 (TTAB 2023) (citing In re Viterra Inc., 671 F.3d 1358, 1362
(Fed. Cir. 2012)). We are entitled to “rely on this legal presumption in determining
likelihood of confusion,” Viterra, 671 F.3d at 1362, in the absence of evidence
regarding the channels of trade and classes of purchasers for the identified goods.
The third DuPont factor also strongly supports a conclusion that confusion is likely.
OSF Healthcare, 2023 WL 6140427, at *9.
C. 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.’” Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *4
(quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” Sage Therapeutics, Inc. v. Sageforth
Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB 2024) (quoting In
re Inn at St. John’s LLC, No. 87075988, 2018 WL 2734893, at *5 (TTAB
2018) (citation omitted), aff’d per curiam, 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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach

Serial No. 98925014
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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.’” Id. (quoting In re i.am.symbolic, llc, No.
85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)).
“[S]imilarity is not a binary factor, but is a matter of degree.” St. Helena Hosp.,
774 F.3d at 752 (quoting In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed. Cir.
2003)). Where, as here, the involved goods are legally identical in part, a lesser degree
of similarity between the marks is required for confusion to be likely. Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992) (“When marks
would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.”).
The involved marks are L’APOTHE and APOTHE, both in standard characters.
Applicant argues that “[t]he Examining Attorney erred in dismissing the significance
of the prefix ‘L’. In a crowded field where the root word ‘APOTHE’ is weak, the
addition of ‘L’ creates a distinct commercial impression.” 6 TTABVUE 5. The
remainder of Applicant’s argument for dissimilarity is as follows:
1. Distinct Commercial Impression (French vs.
Modern): The cited mark “L’APOTHE” employs the
French definite article “L’’. This immediately imparts a
“French,” “European,” or “Old-World” character to the
mark, suggesting a traditional French apothecary
(L’Apothicaire). In contrast, Applicant’s mark “APOTHE”
is devoid of such articles. It presents as a modern,
minimalist, and coined English term. This difference
in cultural connotation and commercial vibe is significant
to consumers.
2. Sight and Sound: The mark “L’APOTHE” is
pronounced with a distinct initial syllable (e.g., “La-Poth”),

Serial No. 98925014
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whereas Applicant’s mark starts with a vowel sound.
Consumers place emphasis on the beginning of marks. The
visual presence of the apostrophe and the capital “L”
further distinguishes the cited mark from Applicant’s
simple, unadorned mark. Given the weakness of the shared
term, these differences are sufficient to prevent confusion.
Id. (emphasis supplied by Applicant).
The Examining Attorney responds that “[t]he applied-for mark, ‘APOTHE’ should
be refused because it is likely to cause confusion with ‘L’APOTHE’ given the close
similarities between the marks and their use in connection with identical goods.” 8
TTABVUE 4. The Examining Attorney argues that “it is clear that the dominant
feature of both Applicant’s and registrant’s marks is ‘APOTHE’,” that “‘L’APOTHE’
contains a single additional literal element: the French article ‘L’, which translates
to ‘the,’” and that “[t]he Board has found that inclusion of the term ‘the’ at the
beginning of one of the marks will generally not affect or otherwise diminish the
overall similarity between the marks.” Id. at 5 (citation omitted). According to the
Examining Attorney, “a consumer encountering the marks at issue is likely to attach
significance to the prominence and distinctiveness of ‘APOTHE’ in each mark, and
are [sic] less likely to attach significance to an article.” Id. at 5-6.
The Examining Attorney further argues that the marks are similar in appearance
because “Registrant’s mark incorporates the entirety of Applicant’s mark,” that “[t]he
marks’ auditory similarity is also evident” because the marks “are both two syllables,
their second syllables are identical, and their first syllables differ only in their
beginning sound,” and that “Applicant’s mark also shares a connotation with
registrant’s mark” because “[b]oth call to mind an apothecary” and “[t]he applied-for

Serial No. 98925014
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mark consists of the first six letters of the word ‘apothecary,’ while the registered
mark is literally French for ‘the apothecary.’” Id. at 7 (citations omitted). The
Examining Attorney concludes that “[t]he combination of the marks’ similar
appearances, sounds, and connotations yields an expected result: the applied-for
mark and the cited registered mark have very similar overall commercial
impressions.” Id. at 8.
We agree with the Examining Attorney that the marks L’APOTHE and APOTHE
are similar in appearance, sound, connotation, and commercial impression. As
discussed above, Applicant did not support its “crowded field” argument with record
evidence, and the only difference between the marks is the presence in the cited mark
of the “L’-” prefix, which the record shows is a contraction of the French definite
articles “le” and “la” that is used when the definite article precedes a singular noun
that begins with a vowel.24
When a definite article appears before a noun in a mark, the definite article rarely,
if ever, has any source-identifying significance, because it simply refers to the noun.
See In re Thor Tech Inc., No. 78634024, 2009 WL 1098997, at *2 (TTAB 2009) (finding
that the marks WAVE and THE WAVE were “virtually identical” because “[t]he
addition of the word ‘The’ at the beginning of the registered mark does not have any
trademark significance” and “as used in the registered mark THE WAVE, the word
‘The’ simply emphasizes the word ‘Wave.’”); In re Allegro Multimedia, Inc., No.
78832702, 2008 WL 1741908, at *2 (TTAB 2008) (“the word ‘Wiz’ is the dominant
24 July 17, 2025 Office Action at 15 (rocketlanguages.com).

Serial No. 98925014
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portion of the registered mark, THE WIZ. ‘The’ is a definite article. When it is used
before a noun (e.g., The Wiz), it denotes a particular person or thing. In this case,
‘The’ has no trademark significance because it functions only as a term of reference
(i.e., it simply emphasizes the ‘Wiz’)” (citations omitted)). The same principle applies
with respect to definite articles in foreign languages. See M.C.I. Foods, Inc. v. Bunte,
No. 92045959, 2010 WL 3798506, at *9 (TTAB 2010) (“With respect to MCI’s LOS
CABOS and design mark, ‘Los’ is Spanish for the definite article ‘the’ . . . and as such
highlights the word ‘Cabos’.”); In re Central Soya Co., 1984 WL 63140, at *2 (TTAB
1984) (“The Spanish article ‘La,’ which means ‘The,’ cannot be said to have any
distinguishing effect” between the marks LA POSADA and POSADA in stylized
lettering). Cf. In re Johanna Farms, Inc., No. 73171952, 1984 WL 63053, at *10
(TTAB 1984) (the “commonness of the French definite article also pervades our
commercial vocabulary and the advertising of certain categories of products (e.g.,
cosmetics) abounds in uses of ‘la’ and ‘le.’ Consequently, the presence of the article in
LA YOGURT is not unique in any American purchaser’s experience and, whether
translated or not, does not, in our view, transform the generic term ‘yogurt’ into a
term capable of acquiring distinctiveness as a trademark”).25
Because the “L’-” prefix in the cited mark L’APOTHE has no source-identifying
significance, we find that the L’APOTHE and APOTHE marks are very similar in
25 Here, unlike in Johanna Farms and in In re Universal Package Corp., 1984 WL 63040, at
*3-4 (TTAB 1984), which involved the mark LE CASE for jewelry boxes and gift boxes not
made of precious metal, the marks L’APOTHE and APOTHE do not contain a combination of
English and foreign words.

Serial No. 98925014
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appearance from the perspective of a consumer with a general rather than specific
recollection of the L’APOTHE mark for cosmetics who separately sees Applicant’s
APOTHE mark for identical goods. Thor Tech, 2009 WL 1098997, at *2.
With respect to sound, just as marks are not viewed side-by-side when comparing
them in appearance, they are not pronounced sequentially when comparing them for
aural similarity or dissimilarity. A consumer with a general rather than specific
recollection of the sound of the cited L’APOTHE mark who subsequently hears
Applicant’s APOTHE mark is unlikely to distinguish the marks in sound merely
because the letter “L” is not heard when Applicant’s mark is verbalized. It is far more
likely that such a consumer would consider the marks to be the same or very similar
in sound because they both contain the same two-syllable word APOTHE, which
sounds identical or very similar when both marks are verbalized. Sage Therapeutics,
2024 WL 1638376, at *6.26
Finally, with respect to meaning, the owner of the cited mark L’APOTHE
translated it as “the apothecary,”27 apparently defining the word “apothe” as
“apothecary.”28 Whether or not this translation is accurate, Applicant’s mark
APOTHE consists, in its entirety, of the same apparently foreign word without the
French definite article that is present in the cited mark, and a consumer with a
26 As noted above, Applicant argues that the cited mark would be pronounced “with a distinct
initial syllable (e.g., ‘La-Poth’).” 6 TTABVUE 5. Assuming that this is true, it follows that
Applicant’s mark APOTHE would be pronounced “Ah-Poth,” which is obviously similar in
sound to “La-Poth.”
27 June 17, 2025 Office Action at 12.
28 As noted above, the owner of the cited ’842 Registration similarly translated the word
“Apothe” in the mark as “Apothecary.” Id. at 9.

Serial No. 98925014
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general rather than specific recollection of the L’APOTHE mark who separately
encounters Applicant’s APOTHE mark is likely to understand Applicant’s mark to
mean the same thing as the cited mark, even if the precise meaning of the foreign
word “apothe” is not known.
We find that the marks are quite similar in all means of comparison, and the first
DuPont factor strongly supports a conclusion that confusion is likely.
D. Balancing the DuPont Factors
“The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; ‘explain the results of that
weighing;’ and discuss ‘the weight [we] assigned to the relevant factors.’” Jimenez,
2025 WL 3126703, at *8 (quoting Charger Ventures, 65 F.4th at 1379). “No
mechanical rule determines likelihood of confusion, and each case requires weighing
of the facts and circumstances of the particular mark.” Id. (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010)). “‘[T]he weight afforded to each factor
depends on the circumstances’ and ‘[a]ny single factor may control a particular case.’”
Id. (quoting Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998
(Fed. Cir. 2020)).
The key first two DuPont factors strongly support a conclusion that confusion is
likely because the L’APOTHE and APOTHE marks are quite similar in all means of
comparison, and the involved goods are legally identical in part. Because the goods
are legally identical in part, the channels of trade and classes of consumers are also
deemed to be identical, and, as discussed above, the degree of similarity between the

Serial No. 98925014
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marks necessary for confusion to be likely declines, which further strongly supports
a conclusion that confusion is likely.
The cited L’APOTHE mark is conceptually weak and it is not entitled to the
“normal scope of protection to which inherently distinctive marks are entitled.” Sage
Therapeutics, 2024 WL 1638376, at *10 (quoting Bell’s Brewery, Inc. v. Innovation
Brewing, No. 91215896, 2017 WL 6525233, at *9 (TTAB 2017)). But as discussed
above, even weak marks registered on the Supplemental Register are entitled to
protection against “registration of a similar mark for use on the same or closely
related goods or services.” Morinaga Nyugyo, 2016 WL 5219811, at *9. We conclude
that the L’APOTHE and APOTHE marks are sufficiently similar to accord the cited
mark protection against registration of Applicant’s mark for legally-identical goods.
Decision: The refusal to register is affirmed.