TTABlog Test: Is "GENRESTORE" Confusable With "RESTOREGEN" for Dietary Supplements?

The USPTO refused registration of the mark GENRESTORE, finding confusion likely with the registered mark RESTOREGEN, both for dietary supplements. Applicant Live Good conceded that the commercial impression of both marks is that the dietary supplements will “restore” something missing in the user’s body or diet, but the marks differ in sound and appearance. Live Good contended that consumers will will exercise heightened care in purchasing products they intend to ingest. How do you think this appeal came out? In re Live Good Inc., Serial No. 88877980 (August 17, 2021) [not precedential] (Opinion by Judge Michael B. Adlin). 

Live Good argued that the word RESTORE is a weak formative but it failed to timely submit its supporting evidence (a dictionary definition and third-party registrations).

As to the goods, since they are identical, the Board must presume that they travel in the same trade channels to the same classes of consumers. Moreover, when the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

Live Good argued that its supplements are a "pre-dopamine regulater" used for "addiction management," but the Board pointed out once again that it is constrained to consider applicant's goods as they are identified in the application ("dietary supplements"), regardless of actual marketing or use.

As to the marks, the Board noted the differences between the marks but concluded that the similarities outweigh the differences. The reversal of word order was insufficient to overcome "the confusion that would arise out of Applicant and Registrant using identical terms for identical goods." The Board pointed out that word marks and transposed versions thereof "are often found to create highly similar meanings and commercial impressions." [E.g., DIET-RITE and RITE DIET, RUST BUSTER AND BUST RUST, SPRINT STEEL RADIAL and RADIAL SPRINT.]

“[T]he reversal in one mark of the essential elements of another mark may serve as a basis for a finding of no likelihood of confusion only if the transposed marks create distinctly different commercial impressions.” In re Nationwide Indus. Indus., 6 USPQ2d at 1884. Here, there is no evidence that the marks create “distinctively different commercial impressions,” nor any other basis for finding that they do.

As noted, Live Good conceded that the commercial impression of both marks is that the products will "restore" something that's missing. "Thus, to at least that important extent the marks create similar commercial impressions."

Finally, the Board observed that the "average" purchaser "normally retains a general rather than a specific impression of trademarks," and the purchaser "may well transpose the elements of [the marks} in his mind."

The Board acknowledged that some purchasers may exercise heightened care in purchasing a product that they will ingest, but the Board found this factor to be outweighed by the identity of the goods, the overlapping trade channels and classes of consumers, and the similarities between the marks.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: Some say the "average" American consumer is below average.

Text Copyright John L. Welch 2021.