Friday, June 22, 2007

TTAB Finds Water and Soy Shake Mix Related, Sustains 2(d) Opposition to "REVIVAL WATER"

I needed to be revived after reading the TTAB's decision in Tabor v. LaBarba, Opposition No. 91166743 (June 14, 2007) [not precedential]. The Board sustained an opposition to registration of the mark REVIVAL WATER for bottled water, spring water, and the like, finding the mark likely to cause confusion with the mark REVIVAL, previously used for a "soy shake mix." The products are related, ruled the Board, because Opposer's soy mix product "is to be blended with water."

The Board had little difficulty in finding the marks to be "nearly identical," since the word WATER is generic for Applicant's goods. Both parties asserted that REVIVAL refers to good health or feeling renewed or restored, and both market their products to Christian groups, thus giving the marks a religious connotation as well. Third-party registrations for REVIVE, BODY REVIVE, and RINASCENTE for various beverages were found to be of "very limited probative value." [TTABlog comment: don't these registration confirm that REVIVAL is suggestive of healthful properties of the goods, and therefore not the strongest mark?].

Turning to the products, the Board found that the goods of Opposer's registrations -- "soybean-derived dietary supplement" and "soy protein for use as a food additive in cereals, breads, muffins and meat" -- were just too different from Applicant's bottled water to support Opposer's 2(d) claim.

However, Opposer established common law rights in the REVIVAL mark for "soy shake mix." He testified that the first use of the mark was on "soy-derived nutritional supplements," and more specifically on a "soy shake mix," and he averred that the instructions on the package stated that the product is to be "blended with water." That was enough for the Board to find Applicant's water to be complementary to Opposer's shake mix.

Noting that the goods are relatively inexpensive and that both are marketed to Christian consumers, the Board concluded that confusion is likely and it sustained the opposition.

TTABlog comment: Well, here's a good candidate for this year's "Ten Worst" list. I think the Board went astray on three points: first, in finding, based solely on Opposer's testimony and apparently without documentary corroboration, that Opposer had established prior use on shake mixes blended with water.

Second, in holding that two products are complementary because one might be mixed with the other. Are sugar and coffee related products? How about tea and honey? Tea bags and water? Water and coffee? Water and detergent?

Finally, the Board failed to recognize the suggestiveness of the word REVIVAL for health-related products. Instead is seemed to bend over backward in order to find in favor of Opposer.

Text Copyright John L. Welch 2007.


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