Wednesday, April 11, 2012

Precedential No. 19: TTAB Finds Actual Confusion and Bad Faith, Sustains SUPER CHIRO TEA Opposition

The one-two punch of actual confusion and bad faith knocked out Glenn Lichter's application to register the mark SUPER CHIRO TEA for "herbal teas for medicinal purposes" [TEA disclaimed]. The Board found the mark likely to cause confusion with the registered mark CHIRO-KLENZ for "herbal teas for medicinal purposes; nutritional supplements for eliminating toxins from the body." Edom Laboratories, Inc. v. Glenn Lichter, 102 USPQ2d 1546 (TTAB 2012) [precedential].

Applicant Lichter appearing
pro se feebly argued that Opposer's mark CHIRO-KLENZ is weak because "the product is sold to chiropractors and is for the purpose of cleansing." The Board, however, found the mark to be, at worst, suggestive. A list of third-party registrations submitted by Lichter was non-probative, and two third-party website pages were inadmissible.

The goods are, in part, identical, and to that extent they are presumed to travel to the same, normal classes of consumers through the same, normal channels of trade.

As to the marks, because the goods partly identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. The Board found the dominant portion of Applicant's mark to be CHIRO, since SUPER is laudatory and TEA is generic. As to Registrant's mark, the first part of the mark "is most likely to be impressed upon the mind of a purchaser and remembered." Despite the obvious differences in the marks, the Board found that their similarities outweigh their differences."[C]onsumers may believe that SUPER CHIRO TEA and CHIRO-KLENZ are different varieties of the CHIRO line of tea."

Applicant Lichter failed to show that purchasers of the products are sophisticated; the low price of the goods "suggests that purchases are made by ordinary consumers who exercise no more than ordinary care in making their purchasing decisions."

Actual Confusion: The Board gave some probative value to 10 or 15 telephone calls received by Opposer, in which the callers either asked for SUPER CHIRO TEA or inquired as to Opposer's relationship to SUPER CHIRO TEA. This evidence was not inadmissible hearsay because it was not offered for the truth of what the caller said, but only as to the fact that the statements were made by the callers. However, the evidence was of only "minimal probative value" because there was no testimony from the callers themselves as to whether and why they were confused.

Additional testimony (by way of declaration) of actual confusion, by two persons who were confused, was more probative. In searching for CHIRO-KLENZ tea, each thought that SUPER CHIRO TEA was made by Opposer.

Bad Faith: Once again invoking the 13th duPont factor, the Board considered Lichter's bad faith in adopting the mark SUPER CHIRO TEA. It agreed with Opposer that Applicant took "affirmative steps to cause confusion and to associate SUPER CHIRO TEA with CHIRO-KLENZ tea." For example, Lichter included the tag line "FROM THE ORIGINAL MAKERS OF CHIRO-KLENZ" on his packaging [The parties had a past relationship]. Lichter also owns the domain name, which redirects to his website. And he used testimonials for CHIRO-KLENZ to promote his own product.

The "overwhelming" evidence showed that Applicant Lichter had a bad faith intent to cause, and profit from, consumer confusion.

And so the Board sustained the opposition.

TTABlog comment: Another case resolved through the Board's ACR procedure. Have you tried it?

Text Copyright John L. Welch 2012.


At 6:47 PM, Anonymous D.S. said...

"Chiro" isn't descriptive for products having some connection to chiropractors? You'd never guess that by examining past prosecution files. Examining attorneys have required applicants to disclaim "chiro" for marks used on products having anything to do with health.

At 12:21 PM, Anonymous Sean Kelleher said...

As I read it the applicant was represented by counsel, Todd Wengrovsky.

Also, you state that the applicant feebly argued, however, the TTAB threw out most of the documentary evidence of the applicant on technicalities. The website was inadmissible because it lacked the proper headers. The in-numerable Google search results were inadmissible as a list and should have been presented as individual web pages and the list of trademarks already bearing "chiro" was admissable but not probative (since it was presented as a list and not as each file). On the other hand the TTAB looked at the seven affidavits, most of which were drafted by interested parties and used those "as at least" probative evidence.

Finally, it was noted that the applicant used on his own website "from the original makers of Chiro-Klense" and that this is clear evidense of bad faith. Yet, the petitioner states in it own complaint Paragraph 3 that Special Tea was the formulator and, procurer and relabel-er of Chiro-Klense. In fact the agreement in the record showed the same. That this was a true statement. True statements, simply are not illegal, yet this ruling takes somethiing that is true and makes it bad faith.


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