       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

        IN RE: HALO LEATHER LIMITED,
                     Appellant
              ______________________

                      2017-1849
                ______________________

    Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
86530941.
                 ______________________

                Decided: June 13, 2018
                ______________________

   WILLIAM JOHN SEITER, Seiter Legal Studio, Santa
Monica, CA, for appellant.

    NATHAN K. KELLEY, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
appellee Andrei Iancu. Also represented by THOMAS L.
CASAGRANDE, SARAH E. CRAVEN, CHRISTINA J. HIEBER,
THOMAS W. KRAUSE.
                ______________________

    Before PROST, Chief Judge, NEWMAN and REYNA, Cir-
                      cuit Judges.
PER CURIAM.
2                                 IN RE: HALO LEATHER LIMITED




     In this trademark case, Halo Leather Limited seeks to
register the mark “AQUAPEL” and an associated design
for leather or imitation leather home goods, including
beds, curtain rails, curtain hooks, curtain rings, mattress-
es, and tables. The examining attorney in the Patent and
Trademark Office rejected Halo’s application on the
ground that the mark is likely to be confused with a
registered mark “AQUAPEL” for home goods including
bed blankets, comforters, curtain fabric, curtains of tex-
tile, mattress covers and pads, table linen, textile fabrics,
and textile place mats. The Trademark Trial and Appeal
Board upheld the examining attorney’s rejection based on
its findings that the two marks are similar in terms of
their appearance, sound, connotation, and commercial
impression, and that consumers would likely identify
goods covered under the marks to emanate from a single
source. We affirm.
                              I
    Halo Leather Limited (“Halo”) filed the application at
issue in 2015, seeking to register the mark “AQUAPEL”
with an associated design, shown below.
IN RE: HALO LEATHER LIMITED                                 3



     In its application, Halo describes the mark as “con-
sist[ing] of the term ‘AQUAPEL’ in stylized letters ap-
pearing below a bull[’]s skull with horns, all on a
background depicting beads of water repelled from a flat
surface.” J.A. 35. Halo identified the mark for use with
the following goods under two categories:
       [International Class 18] Leather and imita-
       tions of leather and goods made of these mate-
       rials and not included in other classes, namely,
       animal skins, animal hides, trunks and travel-
       ling bags; umbrellas; parasols; walking sticks,
       whips, harnesses and saddlery, suitcases, gym
       bags and holdalls, wallets and purses, hand-
       bags, traveling bag sets; valises, luggage, brief-
       cases, leather key holders, unfitted leather
       furniture covers; and
       [International Class 20] Furniture; mirrors;
       beds; chairs; wood bedsteads, benches; non-
       metal bins; cabinets; chests for toys; chests of
       drawers; chests, not of metal; coat stands; con-
       tainers for household use; counters, namely,
       tables; crates; cupboards; curtain rails; curtain
       hooks; curtain rings; deckchairs; desks; draft-
       ing tables; dressing tables; foot stools; picture
       frames; magazine racks; shelves and metal and
       non-metal shelving; mattresses; office furni-
       ture; pillows; sideboards; sofas; ottomans; arm-
       chairs; statues of wood; statuettes of wood,
       plaster or plastic; stools; table tops; tables;
       trestle tables; tea trolleys; work benches;
       kitchen furniture, namely, kitchen cabinets;
       cushions; storage racks.
J.A. 35–36.
    The examining attorney’s search of prior-registered
marks revealed that Nanotex, LLC (“Nanotex”) already
registered the mark “AQUAPEL” in standard character
4                               IN RE: HALO LEATHER LIMITED




form (Registration No. 4230659, issued October 23, 2012)
for use with the following goods:
        [International Class 24] Bed blankets; Com-
        forters; Curtain fabric; Curtains of textile;
        Mattress covers; Mattress pads; Shower cur-
        tains; Table linen; Textile fabrics for home and
        commercial interiors; Textile fabrics for the
        manufacture of clothing; Textile place mats.
J.A. 101–02.
    In the initial office action, the examining attorney
issued a partial refusal. The examining attorney did not
object to the registration for certain Class 18 goods—
trunks and travelling bags; umbrellas; parasols; walking
sticks, whips, harnesses and saddlery, suitcases, gym
bags and holdalls, wallets and purses, handbags, travel-
ing bag sets; valises, luggage, briefcases, leather key
holders. 1    However, the examining attorney refused
registration for the rest of Class 18 goods generally relat-
ed to leather and imitation leather products, including
animal skins, animal hides, and unfitted leather furniture
covers. The examining attorney also refused registration
as to all of the Class 20 goods in Halo’s application gener-
ally related to home furnishings.
    The examining attorney based the rejections primari-
ly on two findings. First, the marks are “confusingly
similar” as the word portions of the two marks are identi-
cal. Second, the respective goods are related and “con-
sumers are likely to be confused and mistakenly believe
that the respective goods emanate from a common
source.” J.A. 48. The examining attorney cited evidence
from retailer websites for home goods and furniture to


    1  These goods are not at issue in this appeal. The
Board confirmed that registration for these goods “will
proceed to publication in due course.” J.A. 13.
IN RE: HALO LEATHER LIMITED                                5



show that companies commonly manufacture the relevant
goods and market the goods under the same mark. J.A.
47–48; see id. at 51–100 (documenting various websites).
The examining attorney concluded that Halo’s rejected
goods and the goods under Nanotex’s registration are
related for likelihood of confusion purposes, and that
consumers are likely to be confused and mistakenly
believe that the respective goods emanate from a common
source.
     Halo responded that its mark is not likely to be con-
fused with Nanotex’s mark because the refused goods in
its application do not overlap with the goods under Nano-
tex’s mark and are not appreciably related. The examin-
ing attorney issued a final action, rejecting Halo’s
argument and maintaining refusal of Class 20 and the
same set of Class 18 goods. In addition to the internet
evidence cited in the initial office action, the examining
attorney listed additional evidence of third-party trade-
marks for use with the same or similar goods as those
covered by Halo’s and Nanotex’s marks. J.A. 117; see id.
119–60 (documenting various third-party trademark
registrations). Halo requested reconsideration from the
examining attorney, which the examining attorney de-
nied. 2 Halo appealed to the Trademark Trial and Appeal
Board (“Board”).




   2    In its request for reconsideration, Halo amended
its Class 20 application to add, at the end of its list of
goods, two qualifying clauses:
       [A]ll of the foregoing featuring leather or imi-
       tation leather, and none of the foregoing in-
       cluding or featuring bed blankets, comforters,
       curtain fabric, curtains of textile, mattress co-
       vers, mattress pads, shower curtains, table lin-
6                                IN RE: HALO LEATHER LIMITED




    On appeal, the Board agreed with the examining at-
torney’s findings. The Board concluded that Halo’s mark
is similar to Nanotex’s mark in terms of appearance,
sound, connotation, and commercial impression because
they share identical words and because Nanotex’s mark is
the only registered mark with the term “AQUAPEL” for
home goods. The Board also found the goods are similar
because these goods are sometimes registered under a
single mark and are advertised and sold through the
same channels. As a result, a consumer is likely to con-
clude that the relevant goods emanate from a single
source.
                            II
    The question of whether there is a likelihood of confu-
sion between a registered mark and a mark for which a
registration application has been filed is an issue of law
based on underlying facts. On-Line Careline, Inc. v. Am.
Online, Inc., 229 F.3d 1080, 1084 (Fed. Cir. 2000). The
legal conclusions of the Trademark Trial and Appeal
Board are subject to de novo review, while the Board’s
factual findings must be sustained if they are supported
by substantial evidence. See In re Save Venice N.Y., Inc.,
259 F.3d 1346, 1351 (Fed. Cir. 2001). To decide whether a
likelihood of confusion has been shown in a particular
case requires us to consider the factors summarized in In
re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361
(CCPA 1973). The two DuPont factors at issue in this
appeal are (1) the similarity of the marks, and (2) the
similarity of the goods.




       en, textile fabrics for home and commercial in-
       teriors or textile place mats.
J.A. 221.
IN RE: HALO LEATHER LIMITED                             7



                              A
    Evaluating the similarity between a registered mark
and an applicant’s mark requires examination of the
appearance, sound, connotation, and commercial impres-
sion of the two marks. See In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 1566 (Fed. Cir. 1984). Apply-
ing those criteria in this case, we conclude that the
Board’s determination that Halo’s mark and Nanotex’s
registered mark are confusingly similar is supported by
substantial evidence.
    Nanotex’s mark contains the term “AQUAPEL” in
standard character form, while Halo’s mark contains the
identical term with a design element. Although the
marks are to be assessed in their entirety, the word
portion of a word and design mark is usually viewed as
the dominant element. See In re Viterra Inc., 671 F.3d
1358, 1366–67 (Fed. Cir. 2012). The term “AQUAPEL”
appears prominently on Halo’s mark, and appears in a
similar font and style to Nanotex’s registered mark. J.A.
40, 102. Substantial evidence supports the Board’s con-
clusion as to the marks’ similarity.
    Substantial evidence also supports the Board’s finding
that Nanotex’s registered mark is strong because the term
“AQUAPEL” is an arbitrary term without an established
meaning when used in connection with the goods at issue.
Halo contests this finding and argues that the
“AQUAPEL” mark is suggestive—namely, that it suggests
that the goods in the cited registration are water-
repellant. But even assuming the term “AQUAPEL”
could suggest that goods in the registration are water-
repellent, as Halo argues, Nanotex’s registration is not
limited to only water-repellent goods. There is also no
indication that Nanotex sells exclusively water-repellent
goods under the cited registration.
   We conclude that substantial evidence supports the
Board’s finding that these two marks, assessed in their
8                               IN RE: HALO LEATHER LIMITED




entirety, are confusingly similar in terms of appearance,
sound, connotation and commercial impression.
                            B
     “[L]ikelihood of confusion can be found if the respec-
tive products are related in some manner and/or if 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 (Fed. Cir.
2012) (citation and quotation marks omitted). The Board
found that consumers are likely to think that the goods
listed in Halo’s application under Class 20 and certain
goods under Class 18 and Nanotex’s goods are so related
that they emanate from the same source. Substantial
evidence supports this finding.
    The Board cited to multiple third-party registrations
that cover various goods from both Nanotex’s registration
and Halo’s application to show that they generally belong
to the category of home goods. The Board also listed
websites of third-party retailers showing the use of a
single mark to identify furniture, bedding fabrics, and
placemats. Similarly, as to Halo’s animal skins and
hides, the Board highlighted evidence of retailers selling
skins and hides, together with bedding, fabrics, and/or
placemats under a single mark. These examples are
substantial evidence that consumers are accustomed to
seeing the kinds of goods in Nanotex’s registration and
Halo’s application being offered under one mark by a
single source. See Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002) (finding the
evidence that “a single company sells the goods and
services of both parties, if presented, is relevant to the
relatedness analysis”).
   On appeal, Halo does not contest the accuracy of the
Board’s evidence, but contends that “something more” is
required beyond that the goods are used together. Appel-
IN RE: HALO LEATHER LIMITED                                9



lant’s Br. 13–14. But this argument mischaracterizes the
Board’s finding. The Board did not merely find that the
goods are used together, but that the evidence shows the
goods come from the same sources under one mark. Beds
and bedding are offered together. Tables, kitchen furni-
ture, placemats, and table linen are offered together.
Curtains are offered together with curtain hooks, rails,
and rings. The Board did not err in finding that consum-
ers are accustomed to seeing the applied-for and regis-
tered goods originating from the same source. Multiple
registrations for marks simultaneously covering the
registrant’s and applicant’s goods confirm this finding.
The record demonstrates that beyond that the goods are
used together, the goods commonly emanate from a single
source.
    For the same reason, Halo’s amended description of
the Class 20 goods in its application to add the “feature
leather and imitation leather” language and to exclude all
the goods in Nanotex’s registration from its application
does not change this finding. In finding of likelihood of
confusion, there is no requirement that the goods be
identical so long as one of the goods in the application is
sufficiently related to one of the goods in the registration
such that consumers would be likely to think they were
offered by the same source. See, e.g., Hewlett-Packard
Co., 281 F.3d at 1267 (“Even if the goods and services in
question are not identical, the consuming public may
perceive them as related enough to cause confusion about
the source or origin.”). Here, the likelihood of confusion is
caused by the high degree of relatedness of the parties’
goods, not by their being identical.
    This is not a case like In re Coors Brewing Co., 343
F.3d 1340, 1346–47 (Fed. Cir. 2003), in which the court
found that the Board’s evidence was insufficient to sup-
port the finding that two marks sharing the term “BLUE
MOON” are related. In Coors, one mark was for restau-
rant services, and the other mark was for beer. Id.
10                                 IN RE: HALO LEATHER LIMITED




Although the court found that the two marks were simi-
lar, their applications were different: one was for services
and the other for goods. See id. (holding that it is not true
that “any time a brand of [food or beverage] has a trade-
mark that is similar to the registered trademark of some
restaurant, consumers are likely to assume that the [food
or beverage] is associated with that restaurant”). Unlike
Coors, both Halo’s application and Nanotex’s mark con-
cern similar goods, and substantial evidence supports the
Board’s finding that a consumer would likely view the
goods under Halo’s mark and Nanotex’s mark emanating
from a single source.
                             III
     For the reasons stated, we affirm the Board’s decision.
                       AFFIRMED
                           COSTS
     No costs.
