TTABlog Test: Is TROOMY for Supplements Confusable with TROOP for Mushroom-Containing Supplements?

Troop Nutrition opposed an application to register the marks TROOMY, in standard character and slightly stylized form, and the mark TROOMY NOOTROPICS in the form shown immediately below [NOOTROPICS disclaimed], for dietary and nutritional supplements, alleging likelihood of confusion with the registered mark TROOP, for dietary and nutritional supplements containing mushroom extract. Since the goods overlap, the Board presumed that those goods travel in the same trade channels to the same classes of consumers. But what about the marks? How do you think this came out? Troop Nutrition, Inc. v. BW Essentials LLC, Opposition No. 91287431 (October 22, 2025) [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board first considered the strength of the TROOP mark. Applicant submitted several website printouts supporting the meaning of TROOP as a group of mushrooms. Opposer's own use of the mark established that it has "some conceptual weakness in that it refers to a name for a group of mushrooms, a key ingredient" in Opposer's supplements. "Given that Opposer is openly marketing and reinforcing this connotation of its mark TROOP, we conclude that consumers of its products would give the mark this suggestive connotation."

The Board was unable to assess the commercial strength of opposer's mark due to "scant data" provided by opposer. DuPont factors five and six "weigh slightly against a finding of likelihood of confusion." The Board therefore accorded opposer’s mark "slightly less than 'the normal scope of protection to which inherently distinctive marks are entitled.'"

Turning to the marks, the Board unsurprisingly found TROOMY to be the dominant element in applicant's two non-standard marks. It also found that "TROOP (likely pronounced in its normal way, rhyming with “sloop” and “group”) and TROOMY (likely pronounced as rhyming with “roomy” and “gloomy”) look and sound different overall."

As to connotation and commercial impression, Applicant BW Essentials provided uncontroverted testimony that "TROOMY is a coined term (intended to mean 'true me' to connote a positive and healthy lifestyle and encourage users to be their 'true self' or find their 'true me') in combination with the words 'shroom' or 'shroomy' to refer to the functional mushroom extracts in Applicant’s goods." Moreover, the parties' advertising and packaging "corroborates that the marks have different connotations and commercial impressions that may be conveyed to consumers."

Because the products at issue are directly competitive, the degree of similarity required to prove a likelihood of confusion is lessened. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992). Nonetheless, comparison of the marks’ sight, sound, meaning sand overall commercial impressions shows that Opposer cannot meet even this lowered standard, especially given the slightly narrowed scope of protection of its pleaded TROOP mark.

And so, the Board found that the first DuPont factor weighed "strongly against a finding of likelihood of confusion."

As to the remaining DuPont factors, the purchaser care factor slightly favored opposer, since "relevant purchasers are likely to exercise some degree of care when it comes to buying and using” goods that are ingested into the human body. Troop's claims of bad faith and actual confusion failed for lack of probative evidence.

The Board concluded that Opposer Troop failed to prove likelihood of confusion, and so it dismissed the opposition.

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TTABlogger comment: How did you do? I think the Board was a bit loose with the evidence of how the marks are actually used. Should it be looking at just the marks themselves? Maybe the Board needed extrinsic evidence in order to bolster its conviction that the marks are not confusingly similar, despite both having the "TROO" prefix.

Text Copyright John L. Welch 2025.