TTABlog Test: Are Clothing and Perfume Related Under Section 2(d)?

The USPTO refused to register the mark MUSH MUSH in the design form shown below, for perfume and cologne, finding confusion likely with the registered mark MUSH-MUSH for various items of clothing. Unsurprisingly, the Board found the marks to be "extremely similar," but what about the goods? Applicant argued that its goods are "distinctly different" having "a clear distinction in the nature, use, and function of the goods." How do you think this came out? [I'll bet everyone will get this right.] In re Esscenza Fragrances Corp., Serial No. 98086647 (August 27, 2025) [not precedential] (Opinion by Judge Wendy B. Cohen).

Examining Attorney Audrey Ricks submitted evidence of more than ten third-party websites offering clothing items and fragrances for sale under the same mark, including RALPH LAUREN; COACH; MICHAEL KORS; GUCCI; DKNY; HOLLISTER; MARC JACOBS; and DOLCE & GABBANA. The Board found that "the third-party website evidence demonstrates that Applicant’s perfume goods and Registrant’s clothing goods are offered under the same mark by the same party and are thus, related."

Applicant contended that the trade channels are different because the goods are sold in different stores and target different demographics and consumers, but the Office's evidence demonstrated that at least ten third-parties sell clothing and perfume together on their retail websites. "This evidence shows that the trade channels and customers for the goods in the Application and Cited Registration overlap to at least some degree." Applicant offered nothing, other than attorney argument, to rebut the Office's evidence.

Applicant argues that its goods are associated with personal grooming and self-care and “[c]onsumers in this market often engage in careful consideration before making a purchase." "The problem with Applicant’s assertion is that, beyond inferences we can draw from the broadly identified goods themselves, there is no evidence in the record to give us any insight as to the possible sophistication of consumers of Applicant’s or Registrant’s goods."

While we can infer from the nature of Applicant’s and Registrant’s relevant goods that potential purchasers may include sophisticated as well as unsophisticated consumers, “[p]recedent requires that we base our decision on the least sophisticated potential purchasers.” Stone Lion, 746 F.3d at 1325.

Finding that the first DuPont factor weighed heavily in favor of affirmance, that the involved goods are related, and that the channels of trade and classes of consumers overlap to some extent, the Board affirmed the refusal.

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Text Copyright John L. Welch 2025.