WYHO? TTAB Finds BRAIN FUEL for Fresh Fruit Not Confusingly Similar to BRAINFUEL for Dietary Supplements

The Board dismissed this Section 2(d) opposition to registration of the mark BRAIN FUEL for "fresh fruit," finding it not likely to cause confusion with the mark BRAINFUEL for "dietary supplement to enhance mental performance." It ruled that "the differences between the goods, coupled with the suggestiveness of the marks" made confusion unlikely. So the question is, Would You Have Opposed? Learning Annex, LLC v. Chiquita Brands LLC, Opposition No. 91171133 (April 13, 2011) [not precedential].


The Board found that Learning Annex had standing to oppose because it relied on its earlier-filed ITU application "and, further, opposer has shown that it is not a mere intermeddler." Opposer's earlier-filed application also gave it priority.

The marks: The Board, not surprisingly, ruled that the marks "engender essentially identical overall commercial impressions." Applicant did not dispute this point.

The goods: The Board noted once again that, when identical marks are involved, a lesser degree of similarity between the goods is required to support a finding of likely confusion.

According to Opposer, the products are related because both "are ingested by human beings." Moreover, Opposer's products "will be based on fruits and vegetables that can enhance your brain."

The Board, however, held that Opposer had "failed to show, by a preponderance of the evidence, that there is even a 'viable' relationship between fresh fruit and dietary supplements."

The fact that the parties’ goods both may be ingested is hardly a basis, in and [of] itself, for a finding that the goods are related. The goods are specifically different; opposer’s proposed product is a manufactured supplement, whereas applicant’s product is a whole food product.

The record was devoid of any evidence corroborating Opposer's assertion that dietary supplements are related to fresh fruit, or that the public would make that association. And so the du Pont factor regarding the relatedness of the goods favored Applicant.

Trade channels and purchasers: The involved goods move through grocery stores, supermarkets, and health food stores, albeit in different sections of the stores. The classes of purchasers would be the same, and they would exercise only ordinary care. The Board found this factor to weigh in Opposer's favor.

Conclusion: The Board saw Opposer's claim "as amounting to only a speculative, theoretical possibility," and it dismissed the opposition.

TTABlog note: This opposition was commenced in 2005. In 2009, the Board denied Applicant's motion for summary judgment in a terse order (here), finding that genuine issues of fact existed "at least with respect to the channels of trade and the relatedness of the respective goods."

Text Copyright John L. Welch 2011.