TTABlog Test: Are Dietary Supplements Related to Skincare Products Under Section 2(d)?

The USPTO refused registration of the proposed mark MANSBRAND for "dietary supplements; erectile dysfunction supplements; male enhancement supplements; herbal supplements; health supplements; health booster supplements; muscle building supplements; and nutraceuticals for use as a dietary supplement," finding confusion likely with the registered mark MANBRAND SKINCARE for "[n]on-medicated skincare products for men, namely, face wash, face lotion, eye cream, body wash, shampoo” [SKINCARE disclaimed]. The marks are too close for comfort, but what about the goods? How do you think this appeal came out? In re Local Holdings, Serial No. 88515551 (November 17, 2021) [not precedential] (Opinion by Judge Cynthia C. Lynch).

As to the marks, the Board rejected applicant's argument that "[t]he plural form of MAN (Mans or man’s) is important, creating the commercial impression of products that can be useful for manly men,” because "nothing about the plural or possessive form produces that impression." Instead, it found the two terms to be nearly identical [not surprisingly] and concluded that the marks convey a similar appearance, sound, connotation, and commercial impression.

As to the goods, Examining Attorney Alexandra El-Bayeh submitted various evidence demonstrating the relatedness of these goods, including third-party registrations identifying both supplements and skin care products, and third-party websites offering same. "The evidence shows that these products are promoted together as part of a wellness regime that includes skincare and dietary, health, or muscle-building supplements."

Applicant's attempts to read limitations into the channels of trade (registrant sells only on-line via monthly subscription) and the sophistication of relevant consumers (discerning customers seeking a solution to a male-oriented issue) did not stand up, the Board pointing out for the umpteenth time that the application and cited registration contain no such limitations. "The retail website evidence in the record reflects that these types of products can be inexpensive and are sold through general consumer retail websites. Thus, we find that they do not necessarily involve elevated care in purchasing."

And so, the Board affirmed the refusal to register.

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Text Copyright John L. Welch 2021.