Bedgear LLC

This Opinion is not a Precedent of the TTAB Mailed: May 25, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Bedgear LLC _____ Serial Nos. 86670797 and 866708001 _____ Leo G. Lenna of Sorell, Lenna & Schmidt LLP, for Bedgear LLC. Kathleen M. Vanston, Trademark Examining Attorney, Law Office 107, J. Leslie Bishop, Managing Attorney. _____ Before Cataldo, Greenbaum and Heasley, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: Bedgear LLC (“Applicant”) seeks registration on the Principal Register of the mark VER-TEX (in standard characters) for Mattresses, mattress foundations, mattress toppers, pillows, back-rest pillows, kids pillows, sleeping bags in International Class 20, and

1 Because the cases share common questions of law and fact, and the relevant portions of the records largely are identical, the appeals are hereby consolidated. See, e.g., In re Anderson,

101 USPQ2d 1912, 1915 (TTAB 2012) (sua sponte consolidation). The TTABVUE and TSDR citations herein include in parenthesis the serial number of the case to which the citation pertains. Serial No. 86670797 and 86670800 (consolidated) - 2 - Bed sheets, bed blankets, comforters, duvets, mattress covers, mattress pads, mattress protector covers, pillow protector covers, pillowcases and pillow covers, crib mattress covers, crib mattress pads, diaper changing pads not of paper, crib mattress protector covers and crib sheets in International Class 24.2 In each application, 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 Applicant’s mark, when applied to Applicant’s goods, so resembles the previously registered mark, VERATEX (in standard characters) for “Throw pillows, neck roll pillows” in International Class 20, and “Bedsheets, pillowcases, bedspreads, bedruffles, comforters, shams, duvet covers, fabric shower curtains, fabric valances, draperies” in International Class 24, as to be likely to cause confusion, mistake or deception.3 After the Examining Attorney made the refusals final, Applicant appealed to this Board and requested reconsideration in each case. On remand, the Examining Attorney denied the requests for reconsideration. The appeals resumed and are fully briefed. We affirm the refusals to register. I. Applicable Law When the question is likelihood of confusion, we analyze the facts as they relate to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,

177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311,

2 Application Serial Nos. 86670800 (Class 20, hereafter the “‘800 Application”) and 86670797 (Class 24, hereafter the “‘797 Application”) were filed on June 23, 2015, based on Applicant’s claim of first use anywhere and use in commerce since at least as early as January 10, 2014.

3 Registration No. 2298208 issued on December 7, 1999; renewed. Serial No. 86670797 and 86670800 (consolidated) - 3 -

65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). A. Similarity or Dissimilarity of the Goods and Channels of Trade We begin with the du Pont factors of the relatedness of the goods and the channels of trade. We must make our determinations under these factors based on the goods as they are identified in the registration and applications. See In re Dixie Rests. Inc.,

105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937,

16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “This factor considers whether ‘the consuming public may perceive [the respective goods of the parties] as related enough to cause confusion about the source or origin of the goods….” In re St. Helena Hosp.,

774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard, 62 USPQ2d at 1004). In this case, the ‘797 Application and the cited registration both identify bedsheets, pillowcases, and comforters/duvets; and the “pillows” identified in the ‘800 Application are broad enough to encompass, and therefore are legally identical to, the “throw pillows” and “neck roll pillows” identified in the cited registration. Accordingly, the goods identified in each application are, in large part, identical to Serial No. 86670797 and 86670800 (consolidated) - 4 - the goods identified in the registration. See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (citing In re Elbaum, 211 USPQ 639, 640 (TTAB 1981)) (unrestricted and broad identifications are presumed to encompass all goods of the type described). We need not consider Applicant’s remaining goods, although we note that the bedding products identified in the applications and registration appear to be related on their face as complementary products (e.g., duvets and duvet covers, pillows and pillow covers), and the record in each application confirms this relationship.4 For purposes of our analysis, it is sufficient if likelihood of confusion is found with respect to use of Applicant’s mark on any good in a particular class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014). Considering the channels of trade and classes of purchasers, because the goods are legally identical in part, and there are no limitations as to channels of trade or classes of purchasers in either the applications or the cited registration, we must presume that the goods identified in the applications and registration will be sold in the same channels of trade (e.g., home goods stores) and offered to the same potential purchasers (e.g., ordinary consumers). See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (absent restrictions in an application and/or

4 See, e.g, April 18, 2016 Final Office Action, TSDR 2-30 (‘797 Application) (printouts from third-party websites Boll & Branch, Garnet Hill, Sheex, Cariloha, Jennifer Adams, and Hollander), and April 18, 2016 Final Office Action, TSDR 2-27 (‘800 Application) (printouts from third-party websites Comfortaire, Tempurpedic, Sleepnumber, and Sealy). Serial No. 86670797 and 86670800 (consolidated) - 5 - registration the identified goods are “presumed to travel in the same channels of trade to the same class of purchasers”) (quoting Hewlett-Packard, 62 USPQ2d at 1005). See also Stone Lion, 110 USPQ2d at 1161-1162. In each application, Applicant argues that the identified goods are distinguishable because “VERATEX is a brand of for [sic] decorative products,” whereas Applicant actually uses its mark on products that have “active cooling technology” and may be described as “utility” bedding, which is “not decorative in any way.” According to Applicant, “utility” bedding and “decorative bedding” “are two completely different categories in the consumer’s mind,” located in different areas “in virtually all stores.”5 This argument is not persuasive because none of the identifications of goods, by which we are bound, contain such limitations. See Dixie Rests., 41 USPQ2d at 1534. See also In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (registrant’s goods may not be limited by extrinsic evidence or argument). B. Comparison of the Marks We next address the du Pont likelihood of confusion factor focusing on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in

5 Applicant’s Brief, 7 TTABVUE 3-4 (in each application). Serial No. 86670797 and 86670800 (consolidated) - 6 - terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). As discussed above, the goods in both involved applications are identical in part to the goods in the cited registration. When marks would appear on virtually identical goods, “the degree of similarity [of the marks] necessary to support a conclusion of likely confusion declines.” See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992), cert. denied, 506 U.S. 1034 (1994). See also ECI Div. of E-Sys., Inc. v. Envtl. Commc’ns Inc., 207 USPQ 443, 449 (TTAB 1980). As noted above, Applicant’s mark is VER-TEX in standard characters, and Registrant’s mark is VERATEX in standard characters. The marks are nearly identical in appearance, differing only in the presence of the hyphen in Applicant’s mark in place of the letter “A” in that of Registrant. In each application, Applicant argues that this difference sufficiently distinguishes the marks visually and aurally such that there is no likelihood of confusion.6 We disagree. Instead, we find this difference to be relatively minor, especially since it is embedded in the middle of each mark. Given the overall visual similarity in the terms, as well as the similarity in sound, discussed below, it is unlikely that consumers will notice the difference, or treat it as a distinguishing feature.

6 Applicant’s Brief, 7 TTABVUE 3 (in each application). Serial No. 86670797 and 86670800 (consolidated) - 7 - In terms of sound, we recognize that there is no correct pronunciation of a mark that, like each of the marks before us, is not a recognized word. StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014); Viterra, 10 USPQ2d at 1912. Nonetheless, the facts that both Applicant’s mark and Registrant’s mark begin with the letters VER and end with the letters TEX, differing only by one character that is buried in the middle, creates a high degree of aural similarity. See Viterra, 101 USPQ2d at 1912 (XCEED and X-SEED similar). Moreover, when surrounded by the same first three and last three letters, the difference in sound between the hyphen, which would not be pronounced, and the letter “A,” is slight, at best. Thus, consumers are likely to pronounce the marks VER-

TEX and VERATEX similarly. See Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228

USPQ 461, 462 (TTAB 1985) (“In our view, the word portion of applicant’s mark ‘SEYCOS’, is virtually the phonetic equivalent of opposer’s ‘SEIKO’ mark and is, in fact, the phonetic equivalent of the plural of opposer’s mark.”). To the extent any minor difference in pronunciation exists, consumers who hear the marks spoken by others are not likely to even notice the difference. Viterra, 101 USPQ2d at 1912. Slight differences in the sound of similar marks do not avoid a likelihood of confusion. In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 352 (TTAB 1983). II. Conclusion We have carefully considered all evidence of record and Applicant’s arguments, even if not specifically discussed herein, as they pertain to the relevant du Pont factors. We treat as neutral any du Pont factors for which there is no evidence. Serial No. 86670797 and 86670800 (consolidated) - 8 - Because the goods include legally identical products that move in the same trade channels, and the marks are nearly identical when viewed in their entireties, we find that confusion is likely between Applicant’s mark VER-TEX and Registrant’s mark VERATEX. Decision: The refusals to register Applicant’s mark VER-TEX are affirmed in both cases.