Despite Applicant Louis Vuitton's attempt to sidestep the refusal by narrowing its identified channels of trade, the Board affirmed a Section 2(d) refusal to register the mark APOGÉE for perfumery products "for non-professional use and sold only within Louis Vuitton Malletier stores, on Louis Vuitton Malletier's website and within Louis Vuitton Malletier's store-within-store partnerships with high-end retail stores within Louis Vuitton Malletier's exclusive distributor network." The Board found the mark confusable with the registered mark APHOGEE for hair care preparations. In re Louis Vuitton Malletier, Serial No. 79165769 (February 2, 2018) [not precedential] (Opinion by Judge Angela Lykos).
The marks: The Board found the marks to be similar in appearance, sound, connotation and commercial impression. "[E]ven if consumers were to perceive Applicant's mark APOGÉE as the French word for "height," because the marks are so alike in appearance and could be pronounced similarly, it is likely that consumers would perceive the cited mark as having the same meaning and commercial impression."
The goods: The record evidence showed that "it is not uncommon for perfumery and hair care products to be sold under the same trademark." The Board concluded that the involved products "are related, complementary items intended to be used together as part of one's beauty care regime."
Applicant contended that "Registrant has no nexus to the alchemic ambit of luxury French perfume," and argued that Registrant's goods are limited to professional grade products. Irrelevant, said the Board, since there are no such limitations in the application and registration at issue.
Channels of trade: A key issue in the appeal concerned whether the trade channel restrictions in the application - "sold only within Louis Vuitton Malletier stores, on Louis Vuitton Malletier's website and within Louis Vuitton Malletier's store-within-store partnerships with high-end retail stores within Louis Vuitton Malletier's exclusive distributor network" - eliminate any likelihood of confusion.
Because the cited registration has no restriction on channels of trade, the Board must presume that registrant's hair care products travel in all trade channels appropriate for these goods, including traditional brick-and mortar and online department stores, and direct business-to-consumer (B2C) websites offering for sale hair care products and perfumes to the general public.
The Board agreed with applicant that Louis Vuitton's own stores and websites "are specialized trade channels that do not overlap with the ordinary channels of trade for Registrant's products." However, that is not the case with regard to "Louis Vuitton Malletier's store-within-store partnerships with high-end retail stores within Louis Vuitton Malletier's exclusive distributor network." Since high-end retail stores often sell the types of goods at issue, they are an appropriate trade channel and therefore one in which registrant's goods may travel. This factor favored a finding of likely confusion.
Conditions of sale: There are no restrictions in the application or cited registration as to purchasers or price points. Even assuming, as applicant asserts, that its perfumes are purchased by sophisticated and discriminating consumers, even careful purchasers are likely to be confused when highly similar marks are used in connection with related goods.
Balancing the relevant du Pont factors, the Board found confusion likely and it affirmed the refusal.
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