TTABlog Test: Are Perfumes Related to Cosmetics for Make-Up Artist Work, Under Section 2(d)?

The USPTO refused to register the marks OUD NEBULA (OUD disclaimed) and FLORAE NEBULA (FLORAE disclaimed) for “perfumes; fragrances and perfumery," finding confusion likely with the registered mark NEBULA for "Cosmetics, in particular airbrush make-up, and powders, make-up and make-up removing preparations for stage, film and television in the nature of theatre cosmetics, and cosmetics for other make-up artist work." The Board found the marks similar in appearance, sound, connotation and commercial impression. But what about the goods? How do you think this appeal came out? In re Harmonist Inc., Serial No. 98456042 (here) and 98456022 (here) (March 12, 2026) [not precedential] (Opinion by Judge Christen M. English).

The Goods: Applicant Harmonist Inc. argued that “the Examining Attorney has treated the cited registration as if it covers cosmetics in general rather than cosmetics limited to theatre cosmetics and cosmetics for other make-up artist work." The Board, however, observed that the phrase "for other make-up artist work" is a limitation on the consumers for the goods but not on the types of cosmetics that registrant offers. "'Make-up artist work' includes more than make-up artists working in stage, film and television; it encompasses all types of make-up artist work, including for events like weddings, parties and photo shoots, as well as make-up artists providing their services at cosmetic counters in retail stores."

Furthermore, the Board pointed out that "cosmetics" is a broad identification that includes perfumes. See USPTO’s Acceptable Identification of Goods and Services Manual (ID Manual) (listing “cosmetics in general, including perfumes” as an acceptable identification of goods in Class 3). "Because perfume is a type of 'cosmetic,' and 'cosmetics' are covered by Registrant’s identification, there is overlap in Applicant’s and Registrant’s goods; the goods are in-part legally identical." 

The Board also found that cosmetics and perfumes are complementary products that are marketed together, sold together in sets, and often applied at the same time to enhance beauty. Third-party registration and use evidence confirmed the complementary nature of the goods.

"The normal classes of consumers for perfume thus include make-up artists – in both their professional and personal capacity – the same consumers who purchase Registrant’s goods. There is consumer overlap." The evidence also showed an overlap in trade channels, since cosmetics, including perfumes, are sold through retail beauty stores

The Board acknowledged that "make-up artists generally are likely to exercise care in purchasing cosmetics for use in their jobs. It is foreseeable that they may also exercise some degree of care in purchasing cosmetics, including perfume, for their personal use." However, since not all perfumes are expensive, the least sophisticated purchaser of perfume "would not be likely to exercise a heightened degree of care."

[B]ecause make-up and perfume are sold by the same entities under the same mark, sometimes packaged together as a set, make-up artists familiar with Registrant’s NEBULA cosmetics who encounter Applicant’s [marks] perfume and fragrances may mistakenly believe that Registrant is expanding from make-up into a line of perfumes, and expanding from cosmetics for make-up artist work to cosmetics for the general public.

The Marks: The Board accepted Harmonist's argument that "one meaning and commercial impression of the Cited Mark NEBULA for Registrant’s goods may 'suggest[] the shimmery, luminescent makeup colors associated with nebula' as 'many nebulae are visible due to fluorescence caused by embedded hot stars….'" The Board noted, however, that another meaning and commercial impression of the cited mark is of a "spray cosmetic that produces a cloud similar to a nebula." "Applicant’s mark has a similar meaning and commercial impression as it is likely to suggest a perfume spray that produces a scented nebula-like cloud."

The Board concluded that "[g]iven the similarities between the marks . . . consumers may perceive Applicant’s mark OUD NEBULA [and FLORAE NEBULA] as a variation of Registrant’s NEBULA mark identifying a companion line of products or may otherwise mistakenly believe that Applicant’s goods are associated with or sponsored by Registrant."

And so, the refusals were affirmed.

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Text Copyright John L. Welch 2026.