TTAB Test: Are Nutritional Supplements And Fruit Beverages Related Under Section 2(d)?

The USPTO refused registration of the mark CODEGREEN for "nutritional supplements in pill and/or powder form," finding the mark likely to cause confusion with the registered mark CODE GREEN for "fruit beverages" and "vegetable-based food beverages." Applicant Spin80 argued that the goods are not related because its supplements are geared toward the training, exercise, and fitness industries whereas the cited goods have no particular application. How do you think this came out? In re Spin80, Inc., Serial No. 87116915 (January 31, 2018) [not precedential] (Opinion by Judge Cynthia C. Lynch).

Because the marks are nearly identical, a lesser degree of relatedness between the goods is necessary to support a finding of likely confusion.

Examining Attorney Jillian Cantor submitted website pages showing nutritional supplements in pill form and fruit beverages sold under the same mark. In addition, 11 use-based third-party registrations that identify both nutritional supplements and fruit beverages suggested that the goods many emanate from the same source.

As to applicant's argument that its goods are "highly specialized," the Board found no evidence to support that assertion. [Irrelevant anyway, since there are no such limitations in applicant's identification of goods - ed.]. There was ample evidence that "the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that the emanate from the same source."

The evidence showed that the channels of trade for the involved goods, and the classes of consumers, overlap. There was no evidence to support applicant's contention that "consumers of nutritional supplements necessarily are overly dedicated to fitness and wellness," and are "specifically pursuing the results and effects" of the supplements. The Board noted that while some consumers may exercise a certain degree of care in selecting supplements, they are not necessarily likely to exercise a high degree of care in examining the trademarks. Moreover, the Board must consider the least sophisticated potential purchasers in making its determination.

Finally, applicant argued that the difference in price of the goods would prevent confusion, but applicant failed to prove that all of its goods are expensive. In any case, the identification of goods in the application has no price limitation, and the evidence showed that supplements can sell as low as  $4-10. And even if consumers exercised a degree of care in purchasing these goods, it is well established that even sophisticated consumers are not immune from source confusion when encountering substantially identical marks.

And so the Board affirmed the refusal.

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TTABlog comment: Was this a WYHA?

Text Copyright John L. Welch 2018.