TTABlog Test: Is GOSHI for Body Lotions Confusable with GOCHI for Supplements?

The USPTO refused to register the mark GOSHI for "Body lotions; Body wash, Facial moisturizers; Facial washes; Skin toners," concluding that confusion is likely with the registered mark GOCHI for, inter alia, "Nutritional supplements, dietary supplements, and liquid dietary supplements" (both marks in standard character form). The marks are awfully close. What about the goods? How do you think this came out? In re Garrett Gutierrez, Serial No. 98666953 (August 27, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

Applicant Gutierrez argued that the cited mark is conceptually weak because it is suggestive of goji berries, a primary ingredient in one of registrant’s products. The Board was unimpressed.

Although the product contains goji juice, there is no evidence that consumers view the cited mark GOCHI as referring to goji berries. Nor is there any evidence that the mark is commercially weak. We conclude that the sixth DuPont factor is neutral and accord the mark the normal scope of protection due to inherently distinctive marks.

As to the marks, Gutierrez asserted that the marks would be pronounced differently, but it offered no evidence in support. The Board pointed out the "sh" and "ch" may be pronounced the same way (e.g. "Chicago," "Michigan"). Nor was there any evidence that the marks have different meanings or connotations. "In sum, we find GOSHI and GOCHI are highly similar in appearance and sound. * * * Therefore, the first DuPont factor favors a finding of likelihood of confusion."

Turning to the goods, Examining Attorney Lindsey Olson Diefenbach submitted five registrations and internet excerpts showing use by 13 third parties of a single mark for both skin care products and supplements, supporting a finding that skincare and nutritional supplements are related. This same evidence also showed that the products "are complementary in nature and closely related insofar as dietary and nutritional supplements and topical skincare (i.e. lotions, washes, moisturizers, and toners) are advertised and typically used together as part of a single skin care or health regimen or routine."

Gutierrez argued that “Registrant’s goods are sold in bulk quantities and are intended to be consumed in small doses.” However, the cited registration contains no such limits, and the Board must evaluate the trade channels based on the goods identified in the registration, regardless of real-world conditions. Moreover, the third-party website evidence "shows that the same online providers sell both the goods in the cited registration and the goods in the subject application, and that these goods are bought by the same consumers — e.g., those seeking improved skin."

Although registrant's goods are sold at a "relatively expensive price," its registration covers "all goods of the type identified, without limitation as to their nature or price" and presumably includes goods that are relatively inexpensive.

The Board noted that prospective consumers for nutritional supplements "might be expected to exercise a reasonable degree of care regarding products that they ingest to improve their health." Nonetheless, "[w]hen relevant consumers include both consumers who exercise more care and the general public, the standard of care for purchasing the goods is that of the least sophisticated potential purchaser, who is unlikely to exercise more than an ordinary degree of care. In re Samsung Display Co., No. 90502617, 2024 TTAB LEXIS 258, at *22 (citing Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014))."

Gutierrez pointed to the lack of evidence of actual confusion, but the Board observed that this has little probative value in an ex parte context, since the registrant has no opportunity to address the issue. Moreover, there was no evidence that, "in the actual marketplace, the same consumers have been exposed to both marks for the respective goods, such that we could make a finding as to the 'length of time during and conditions under which there has been concurrent use without evidence of actual confusion.'"

Finally, Gutierrez invoked Strategic Partners, pointing to it ownership of a registration, more than five years old, for the identical mark GOSHI for "Exfoliating cloths; Exfoliating pads; Loofahs for household purposes; Bath sponges; Bath products, namely, loofah sponges; Cleaning cloth; Facial cleansing sponges; Scrub sponges.” Under that ruling, "[w]here an applicant owns a prior registration and the mark is 'substantially the same' as in the applied-for application [sic], this can weigh against finding that there is a likelihood of confusion." Unfortunately for Gutierrez, the prior registration "does not cover any of the topical skincare goods identified in the present application; instead, it covers various cloths and sponges for personal cleaning use."

Registrant’s GOCHI and Applicant’s applied-for mark GOSHI, both in standard characters, are highly similar in appearance and sound. The goods are related in part, and these related goods are offered in overlapping channels of trade to the same classes of consumers. The fourth, fifth, sixth, seventh, eighth, and thirteenth factors are neutral. No factors weigh against likelihood of confusion.

Read comments and post your comment here.

TTABlogger comment: Is this WYHA? Takeaway: you can't win without evidence!

Text Copyright John L. Welch 2026.