TTABlog Test: Is "ONE GREEN" Confusable With "8GREENS" for Nutritional Supplements?

Tasty Greens LLC opposed an application to register the mark ONE GREEN for nutritional supplements, claiming a likelihood of confusion with its registered mark 8GREENS, also for nutritional supplements. Opposer's supplements are made from eight green vegetables, and its registration issued under Section 2(f) based on acquired distinctiveness. How to you think this opposition came out? Tasty Greens LLC v. Sylvio Campos, Opposition No. 91255119 (July 9, 2021) [not precedential] (Opinion by Judge Johathan Hudis).

The Goods: Applicant Campos's identification of goods ("dietary and nutritional supplements; vitamins") encompassed Opposer Tasty Green's goods as identified in its pleaded registrations (nutritional supplements containing green leafy vegetables and herbs), and so the Board considered the involved goods to be legally identical. It therefore presumed that the goods travel in the same trade channels to the same potential customers. Moreover, the goods are ordinary consumer items available at a relatively low cost, and are therefore purchased with less care by consumers.

The Marks: Tasty Greens' mark 8 GREENS is inherently descriptive and conceptually weak. Applicant Campos submitted a single third-party registration (TRIPLE GREENS) and some evidence of third-party use of marks containing the word GREEN for supplements and the like, all of which constituted some evidence that Opposer's mark is weak.  As to commercial strength, Tasty Greens submitted "significant evidence" that its mark has acquired "a modicum of distinctiveness or secondary meaning in the marketplace." Tasty Greens did not provide evidence of its relative market share, and therefore the Board could not find that 8GREENS is a famous mark.

[W]e find that, while inherently weak, Opposer’s 8GREENS mark has attained a degree of marketplace recognition and is therefore entitled to protection against the registration by a subsequent user of a similar mark for legally identical goods.

Turning to a comparison of the marks, the Board found them to be similar in sight, sound, meaning, and overall commercial impression because "they both start with a number and end with the identical term 'GREEN(S),' differ only by a numerical prefix, share the same format and structure - a single digit number combined with "GREEN(S)' - followed by the five shared letter and the same suffix - GREEN/GREENS[.] and have the same number of syllables." Furthermore, each mark conveys that the products contain a certain number of "GREEN(S)" and provide the health benefit of a "green."

The Board therefore concluded that confusion is likely, and it sustained the opposition.

Lack of Bona Fide Intent: Applicant Campos provided no documentation to show that he had a bona fide intention to use the mark ONE GREEN in commerce. And so the Board sustained the opposition on this ground as well.

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TTABlogger comment: How did you do? Applicant Campos failed to submit timely responses to Opposer's admission requests, and so the Board deemed the requests to be admitted. The Board, however, decided the case without relying on the admissions.

Text Copyright John L. Welch 2021.