Wednesday, April 19, 2023

TTAB Reverses Two Refusals of BEAUTY POPS for Cosmetic Kits: Likelihood of Confusion and Mere Descriptiveness

In an extremely rare ex parte double reversal, the Board tossed out two refusals to register the mark BEAUTY POPS for a "cosmetic kit for applying superfoods that function as a facial mask for nourishing and revitalizing the skin, the kit comprising face mask powder, tray, spatula and spoon, the foregoing used, when the powder is mixed with water and frozen, to create an applicator that has the appearance of a lollipop." The Board found the mark not likely to cause confusion with the registered mark POPBEAUTY for "cosmetics and non-medicated skin care preparations" under Section 2(d) and not merely descriptive of the goods, under Section 2(e)(1). However, Applicant Lynda Truong was required to disclaim the word BEAUTY. In re Lynda Truong, Serial No. 90612249 (April 13, 2023) [not precedential] (Opinion by Judge Cindy B. Greenbaum).

Likelihood of Confusion: The Board found the involved goods to be legally identical because the broadly worded "cosmetics and non-medicated skin care preparations" of the cited registration encompasses the applicant's cosmetic kits. As a result, the Board must presume that these overlapping goods travel in the same trade channels to the same classes of consumers.

Turning to a comparison of the marks, the Board found "crucial differences" between them. Although the marks look and sound similar, "they are more than simple transpositions of essentially the same terms."

The plural “pops” in Applicant’s mark BEAUTY POPS, and the use of the mark on goods that are identified as having “the appearance of lollipops” when mixed and frozen in the enclosed tray, convey the commercial impression of “lollipops.” Registrant’s mark POPBEAUTY, on the other hand, shares the same grammatical structure as common adjectival phrases such as “pop culture,” “pop music” and “pop art,” and therefore is more akin to those terms.

The Board found that the marks have "very different connotations, which engender very different overall commercial impressions when they are considered in their entireties." Deeming this factor to be dispositive, the Board reversed the Section 2(d) refusal.

Mere Descriptiveness: The examining attorney maintained that BEAUTY POPS is descriptive of the applicant's goods "because it immediately identifies a generic wording, BEAUTY, and a feature, POPS, in that it tells purchasers that the goods are beauty products that feature a lollipop-shaped applicator for applying facial masks or 'lollipop-shaped beauty products.'" She relied on excerpts from three websites referring to lollipops as "pops," applicant's identification of goods, which states that the “applicator … has the appearance of a lollipop,” applicant’s specimens of use, in which the goods resemble a lollipop [see photo above], and applicant's website, where the term "pops" is used at least descriptively.

The examining attorney also relied on two third-party websites, showing that foods, including “superfoods” of the type identified in the application, may be “frozen into ice pops,” as well as on Applicant’s website, which states that the “face mask is made with natural, skin loving superfoods such as papaya, bananas, turmeric and aloe vera."

Website evidence convinced the Board that BEAUTY is descriptive of the applicant's products. However, "the record does not support a finding that the component POPS, or the mark BEAUTY POPS, as a whole, immediately describes a significant feature or characteristic of the identified goods." [Why not? - ed.].

Applicant Troung argued that the mark BEAUTY POPS is unitary, and therefore a disclaimer of BEAUTY should not be required. The Board disagreed. It reversed the mere descriptiveness refusal, but required a disclaimer of the word BEAUTY before the mark will be registered.

Read comments and post your comment here.

TTABlogger comment: Hat tip to FOB Gene Bolmarcich.

Text Copyright John L. Welch 2023.


At 9:06 AM, Anonymous Anonymous said...

Fans of Shark Tank would have seen Lynda Truong with this product two seasons ago. She didn't get a deal but at least she got this two-fer.

At 9:27 AM, Blogger Rick Finkelstein said...

Gene Bolmarcich is the man!! Congratulations, Gene!!


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