In its 180th Section 2(d) affirmance this year (against 14 reversals), the Board upheld a refusal to register the mark NATURES STAR HEMP for skin and body topical lotions, creams, balms, and salves for cosmetic use that contain hemp oil extract [HEMP disclaimed], finding confusion likely with the word-and-design mark shown below, for essential oils, oils for toiletry purposes, and fragrances. Applicant argued the design portion of the cited mark is dominant, but the Board disagreed. In re Smith & Vandiver, Corp., Serial No. 88477572 (December 13, 2022) [not precedential] (Opinion by Judge Cynthia C. Lynch).
The Board found that [d]espite the relatively large size of the cited mark's design, it is a simple design, and because it is a plant in a mound of dirt, the depiction reinforces the use of NATURES in the literal portion of the mark." Moreover, the standard character mark that applicant seeks to register could be displayed in the same font as the literal portion of the cited mark. And, as pointed out by Examining Attorney D. Zarick, since hemp is a plant, "consumers familiar with one mark who encounter the other might presume that the plant depicted in the cited mark is the hemp referred to in the subject application."
Because of the significant commonality between the dominant portion of each mark, the marks overall look and sound similar regardless of the cited mark's design element and Applicant's mark's inclusion of the descriptive word HEMP.
Turning to the goods, the Board found them to be related because "the record reflects that consumers are accustomed to encountering these types of products from the same source." In fact, applicant itself offers essential oils and balms, as well as non-CBD products. Numerous screenshots from various third-party websites showed the promotion of goods like applicant's and registrant's under the same mark.
As to trade channels, the third-party website evidence shows that "goods such as Applicant's and Registrant's move in some of the same channels of trade to some of the same classes of consumers."
And so, the Board affirmed the refusal to register.
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