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Bottom line: The Board concluded that the two marks below are confusingly similar.

The applicant filed a trademark application for the mark below in Classes 35. The Examiner cited the mark also shown below in Class 3 and refused the application on the ground that the two marks are similar to each other.

[The applied-for mark]


[The cited mark]

The applied-for mark designates “retail services or wholesale services for cosmetics, toiletries, dentifrices, soaps and detergents” in Class 35, while the cited mark designates “cosmetics, toiletries, dentifrices, soaps and detergents” in Class 3.  These goods and services are recognized similar according to the Examination Guidelines.  So the question is whether the marks are distinguishable or not.  The Board observed the two marks and found as follows:

- Both marks comprise 12 different-sized circular dots or ellipsoidal dots in a circle.
- The applied-for mark places the smallest dot on the upper left position and lines up the dots to both ways to grow larger, while the cited mark places the smallest dot on the upper right position and lines up the dots likewise. The applied-for mark almost overlaps with the cited mark when one is rotated.
- Therefore, consumers will think of both marks almost identical when they see the marks at the different time and place.
- Overall, the applied-for mark and the cited mark are confusingly similar.

And so the Board sustained the refusal.

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