TTAB Test: Are Fruit-Based Beverages Related to Nutritional Supplements?

The USPTO refused to register the mark KARUNA THE ROOT OF GOOD HEALTH & Design (shown below), for "a fruit infused plant-based drink, namely, filtered water infused with a fruit flavoring and plant-based ingredients,” deeming the mark likely to cause confusion with the registered mark KARUNA for "nutritional supplements." The Board found the marks substantially similar, but what about the goods? How do you think this came out? In re Fulfill Food and Beverages, LLC, Serial No. 76719598 (July 13, 2018) [not precedential] (Opinion by Judge Lorelei Ritchie).

The Marks: The word KARUNA is the dominant portion of applicant's mark, said the Board. Not only is that word in larger font, but as the first part of the mark it is the portion most likely to be impressed upon the consumer's mind and remembered. The phrase THE ROOT OF GOOD HEALTH is suggestive of a function of the goods and would be perceived as a slogan modifying KARUNA. The tree design merely reflects the fact that the goods contain plant-based ingredients. In any case, the literal portion of a mark is generally given greater weight.

The cited mark could be depicted in the same stylization as applicant's mark. The Board concluded that the marks are substantially similar in sight, sound, and commercial impression.

The Goods: Examining Attorney John E. Michos submitted third-party websites advertising fruit-flavored beverages that include or serve as nutritional supplements, as well as third-party registrations covering both nutritional supplements and fruit-flavored beverages. "It is therefore clear that the 'fruit infused plant-based drink, namely, filtered water infused with a fruit flavoring and plant-based ingredients' identified by Applicant can include or perform the same function as the 'nutritional supplements' identified in the cited registration, and are related thereto."

Therefore the Board concluded the involved goods and are likely to travel through the same channels of trade to the same classes of consumers, namely, member of the general public who are seeking products to better their fitness and health.

Purchaser Sophistication: Applicant contended that consumers will exercise care in their purchasing decisions regarding the involved goods, but it provided no supporting evidence. Neither the opposed application nor the cited registration contain any limitations as to classes of consumers. In any event, even sophisticated consumers are not immune from confusion when both the goods and the marks are similar. Moreover, the Section 2(d) determination must be made with the "least sophisticated potential purchaser" in mind.

Conclusion: The Board found confusion likely and so it affirmed the refusal.

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TTABlog comment: If you say that "even sophisticated consumers are not immune from confusion when both the goods and the marks are similar," then what impact could evidence of sophistication have in the Section 2(d) analysis?

Text Copyright John L. Welch 2018.