1207.01(a)(i)    Goods or Services Need Not Be Identical

In a §2(d) determination, the goods or services do not have to be identical or even competitive to find a likelihood of confusion. In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *5 (TTAB 2020) (citing In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010)); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1368 (TTAB 2009). The issue is not whether the goods and/or services will be confused with each other, but rather whether consumers would be confused as to their source. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) ("[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods. It is this sense of relatedness that matters in the likelihood of confusion analysis."); In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *5 (citing L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984)). The goods or services of the applicant and the registrant need only be related in some manner and/or the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (citing 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see, e.g., On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1082-87, 56 USPQ2d 1471, 1472-76 (Fed. Cir. 2000) (holding ON-LINE TODAY for Internet connection services and ONLINE TODAY for an electronic publication likely to cause confusion); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (holding MARTIN’S for wheat bran and honey bread, and MARTIN’S for cheese, likely to cause confusion); Weider Publ'ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347 (TTAB 2014) (holding SHAPES for a variety of beauty salon, day spa, and health spa services likely to cause confusion with SHAPE for magazines where the services are of the type normally featured in the magazines); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1433 (TTAB 2013) (holding GOTT LIGHT for various water beverages likely to cause confusion with GOTT and JOEL GOTT for wine); Gen. Mills, Inc. v. Fage Dairy Processing Indus. S.A., 100 USPQ2d 1584, 1597 (TTAB 2011) (holding composite marks containing the word TOTAL for yogurt and other products likely to cause confusion with the mark TOTAL for ready-to-eat breakfast cereal); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266 (TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN for medical ultrasound device, likely to cause confusion); L.C. Licensing, Inc. v. Berman, 86 USPQ2d 1883 (TTAB 2008) (holding ENYCE for custom automotive accessories, and ENYCE for various urban lifestyle clothing items and accessories, likely to cause confusion); In re Corning Glass Works, 229 USPQ 65 (TTAB 1985) (holding CONFIRM for a buffered solution equilibrated to yield predetermined dissolved gas values in a blood gas analyzer, and CONFIRMCELLS for diagnostic blood reagents for laboratory use, likely to cause confusion).

Conversely, if the goods or services in question are not related or marketed in such a way that they would be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion may not be likely. See, e.g., Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d at 1371, 101 USPQ2d at 1723 (affirming the Board’s dismissal of opposer’s likelihood-of-confusion claim, noting "there is nothing in the record to suggest that a purchaser of test preparation materials who also purchases a luxury handbag would consider the goods to emanate from the same source" though both were offered under the COACH mark); Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1244-45, 73 USPQ2d 1350, 1356 (Fed. Cir. 2004) (reversing TTAB’s holding that contemporaneous use of RITZ for cooking and wine selection classes and RITZ for kitchen textiles is likely to cause confusion, because the relatedness of the respective goods and services was not supported by substantial evidence); In re Thor Tech, Inc., 113 USPQ2d 1546, 1551 (TTAB 2015) (holding use of identical marks for towable trailers and trucks not likely to cause confusion given the difference in the nature of the goods and their channels of trade and the high degree of consumer care likely to be exercised by the relevant consumers).