TTABlog Test: Are Cosmetics Related to Bottled Water for Section 2(d) Purposes?

Givn Goods opposed IBMG's application to register the mark GIVN for various cosmetics and for online retail store services in the field of cosmetics, alleging a likelihood of confusion with its identical mark, registered for "Bottled drinking water; Distilled drinking water; Drinking water; Drinking water with vitamins; Drinking waters; Purified bottled drinking water." The involved goods are relatively inexpensive and there are no limitations as to channels of trade or classes of consumers. But are the goods related? That was the question. Givn Goods, Inc. v. IBMG, LLC, Opposition Nos. 91281529 & 91281530 (February 18, 2025) [not precedential] (Opinion by Judge Cynthia C. Lynch).

Applicant IBMG argued that the mark GIVN will be perceived as the word "given," which is "highly suggestive because it 'convey[s] Opposer’s mission to help consumers ‘give’ to others in purchasing Opposer’s GIVN water, suggesting Opposer’s buy-one, give-one business model.'" The Board was unimpressed:

[N]othing about GIVN or “given” describes or suggests anything about Opposer’s identified drinking water. The fact that Opposer has chosen to market the water by promising a donation for each bottle of drinking water purchased does not mean that GIVN or “given” conveys anything about the identified goods.

The Board found opposer's mark to be "an arbitrary and conceptually strong mark with an ordinary degree of commercial strength, and that strength has not been contracted through third-party use of the same or similar marks on similar goods."

With regard to the relatedness of the goods, opposer pointed out that "Evian, a sub-brand of Danone, an international corporation, sells both bottled water and cosmetics in the form of facial spray," "Aquafina sells both water and cosmetics in the form of lip balm, lip gloss, and lip exfoliants," and"Pepsi sells soft drinks and has applied for several marks to sell cosmetics under their brand."

The Board observed that as to IBMG's online retail services, there was no third-party evidence of the same mark being used for drinking water and for those services and no registrations covering both of those goods and services. Nor are the services related on their face to Givn Goods' drinking water goods. "Therefore, Opposer has failed to establish that Applicant’s Class 35 services and Opposer’s goods are related."

As to IBMG's cosmetics, the Board pointed out that the Evian registration cited by Opposer had been cancelled and therefore lacked probabive value. The Pepsi regitration was for soft drinks, not water, and its applications covering cosmetics were proof only that the applictions had been filed. However, the Evian website evidence and the Aquafina evidence were relevant.

However, with only two third-party use examples and a single live, registered mark (AQUAFINA) for both types of goods, this record falls short of showing that consumers are “accustomed” to encountering drinking water and cosmetics under the same mark, or that entities tend to register the same mark for both goods. This is particularly true here, where the goods and services appear to be so different on their face.

The Board concluded that opposer's evidence was "too sparse" to meet its burden to prove relatedness. The Board was also unable to find that the channels of trade overlap.

In sum, although the "identicality of the marks weighs heavily in favor of likely confusion," Opposer Givn Goods failed to prove the relatedness of the goods and services at issue and failed to prove that they are sold in overlapping trade channels to the same consumers.

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TTABlogger comment: Seems like the right result to me, GIVN the skimpy evidence.

Text Copyright John L. Welch 2025.