IP Law Daily, TRADEMARK—T.T.A.B.: Proposed mark HOPE UNWRITTEN likely to be confused with registered mark UNWRITTEN, (Aug 6, 2025)

By Kevin M. Finson, J.D.

The mark HOPE UNWRITTEN was refused registration on the ground of likelihood of confusion with the registered mark UNWRITTEN because the goods were identical and the marks were highly similar.

A jewelry company’s applied-for mark HOPE UNWRITTEN was likely to be confused with the existing mark UNWRITTEN already registered for use with jewelry, the Trademark Trial and Appeal Board has held. The goods were identical and one mark encompassed the other (In re Enewton Design LLC, No. 97830533 (T.T.A.B. July 11, 2025)).

Enewton Design, LLC (Enewton) sought registration on the Principal Register of the standard character mark HOPE UNWRITTEN for use with “Jewelry, namely, bracelets, necklaces, rings, anklets, chokers, lockets, earrings and pendants,” in International Class 14. The Examining Attorney refused registration on the ground of likelihood of confusion with the registered mark UNWRITTEN, also in standard characters, for use with “Bangles; Bracelets; Charms; Earrings; Jewelry; Jewelry chains; Lockets; Necklaces; Pendants; Rings; Silver; Women’s jewelry,” in International Class 14. Enewton appealed. The Trademark Trial and Appeal Board (TTAB) considered the DuPont factors for which there was evidence of record.

Similarity of the goods. The terms “jewelry” and “women’s jewelry” in the registration were sufficiently broad as to encompass all of the goods listed in the application. Accordingly, the goods were legally identical.

Trade channels and purchasers. Neither the registration nor the application contained any limitations as to the channels of trade or classes of consumers, so the legally identical goods were presumed to travel in the same channels to the same classes of consumers. The Board noted that real-world histories of how the goods were sold were not relevant to these factors. Only the claims made in the application and registration held legal effect.

Similarity of marks. The Board found that the marks were similar in sight, sound, and overall commercial impression, noting that they were identical except for the leading word HOPE in the applicant’s mark. While the Board noted that the beginning of a mark is often its dominant element, in this case the consumer would likely view HOPE UNWRITTEN as a singular phrase.

Consumer sophistication. Enewton argued that its customers were loyal and sophisticated, but the board held that the proper inquiry was not directed towards buyers of Enewton’s jewelry but towards consumers of jewelry in general, and that jewelry was purchased by ordinary consumers at all price points. This factor was neutral.

Strength of the registered mark. Because the registered mark was registered on the Principal Register without a claim of acquired distinctiveness, it was presumed to be inherently distinctive. Enewton attempted to rebut this presumption with evidence of third-party use in the form of two pages of Google search results. The Board held that the Google search results lacked probative value because they included only truncated excerpts of how the term UNWRITTEN was used, and so lacked context. As a result, Enewton failed to rebut the presumption and the registered mark was entitled to the normal scope of protection for inherently distinctive marks.

Actual confusion. Enewton submitted a declaration by its founder indicating that there had been no instances of actual confusion. The Board found this was not meaningful because the record did not show a reasonable opportunity for confusion to occur.

All of the factors considered, except for consumer sophistication, weighed in favor of a likelihood of confusion. The Board found that the remaining factors were neutral due to lack of evidence. Balancing the factors, the Board affirmed the refusal to register.

The Case is Serial No. 97830533.

Judge: Elgin, J.

Attorneys: H. Artoush Ohanian (OhanianIP PLLC) for Enewton Design LLC. Gina Hayes for the USPTO.

Companies: Enewton Design LLC

Cases: Trademark USPTO