Tuesday, June 21, 2022

Precedential No. 16: TTAB Unsurprisingly Finds "NATURE MADE" Confusable With "MADE IN NATURE" for Fruit and Snack Products

In a 61-page opinion, the Board sustained three oppositions to registration of the mark NATURE MADE for various foods and beverages, including snack bars containing dried fruits and fruit juice, on the ground of likelihood of confusion with the registered mark MADE IN NATURE for dried fruits and vegetables, snack products, and fresh fruit. The Board took the parties to task for various procedural/evidentiary missteps, tossed out Applicant Pharmavite's Morehouse defense, and painstakingly applied the DuPont factors to find Opposer's mark NATURE MADE to be conceptually weak but commercially moderately strong, the involved marks highly similar, the goods overlapping or related, and the channels of trade and classes of consumers identical or overlapping. Made in Nature, LLC v. Pharmavite LLC, 2022 USPQ2d 557 (TTAB 2022) [precedential] (Opinion by Judge Jonathan Hudis).

Procedural/Evidentiary Missteps: The Board chastised the parties for over-designating documents and testimony as confidential, filing duplicative evidence by different methods of introduction (e.g., via notice of reliance and again via exhibits to deposition testimony), submitting unnecessary and unrelated portions of deposition transcripts, creating an inappropriately large record ("Judges are not like pigs, hunting for truffles buried ... [in the record]"), and inadequately referencing the pages of TTAB docket entries.

Morehouse Defense: Pharmavite raised the (typically useless) Morehouse defense in its brief, but the Board found that Opposer had not been put on proper notice of the defense and further that the issue was not tried by implied consent. In any case, the defense - which holds that an opposer cannot be damaged if the applicant already owns a registration for the same mark for the same goods [in which case, why need another registration? - ed.] - did not apply here because the goods in Pharmative's exiting registrations (supplements) were not identical or substantially the same as those here involved.

Likelihood of Confusion: The Board began with a consideration of the strength of Opposer's MADE IN NATURE mark. As to inherent or conceptual strength, the Board whittled down Pharmavite's third-party registration evidence to a mere 90 registrations for marks that include MADE or NATURE for goods related to Opposer's products, but only eight of those marks included both words. Nonetheless, the Board found that MADE IN NATURE is highly suggestive. As to commercial strength, Pharmavite did not provide any evidence of use of similar marks for similar goods. Opposer's evidence established that its marks have acquired marketplace recognition, albeit not fame, and have moderate commercial strength.

The Board found the marks to be similar in appearance, sound, meaning, and commercial impression: indeed, "highly similar." Some of the goods in Pharmavite's applications are identical to or encompassed within opposer's registrations, and others are similar or related. There was no evidence supporting Pharmavite's claims that the goods would be purchased with more than ordinary care.

Purchasers of Opposer’s MADE IN NATURE products are members of the general public who do not typically spend much time making purchasing decisions for these types of products, who make their purchasing decisions for these products without the assistance of others (such as seller representatives), and often on impulse. The extent of potential confusion, should Applicant’s opposed Applications be allowed to proceed to registration, is significant.

And so, the Board sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: A good discussion and analysis of many DuPont factors, although nothing really new.

Text Copyright John L. Welch 2022.


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