Despite Applicant's Bad Intent, TTAB Dismisses Oppositions to EVSFOOD for Beverages

The Board tossed out these three-pronged oppositions to registration of the mark EVSFOOD for beverages and beverage components, dismissing Opposer's claims of lack of bona fide intent, false suggestion of a connection under Section 2(a), and likelihood of confusion under Section 2(d). Opposer's proofs came up way short on all three claims. Nu Science Corporation v. Yuyao Deutrel Chemical Science and Technology Co., Ltd., d/b/a Evsfood Group, Oppositions Nos. 91225314 and 91225328 (March 11, 2024) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Lack of Bona Fide Intent: Opposer Nu Science bore the burden of proof but failed to make a prima facie case of lack of bona fide intent. "Opposer did not submit any document request(s) and response(s) to substantiate its argument that there is no documentary evidence reflecting a bona fide intent to use the mark. The prima facie case may not require much, but it requires at least that. Nor does Opposer cite any other evidence in the trial record to substantiate its Section 1(b) claim."

Likelihood of Confusion: Nu Science alleged that applicant’s EVSFOOD mark "is a clear combination of Opposer’s two (2) Trademarks. ‘EVS’ is the initials of ‘EVERETT STOREY’ and ‘FOOD’ is the suffix of ‘CELLFOOD.’ Put together, the mark creates ‘EVSFOOD.'" Both notices of opposition alleged that "there exists a likelihood of confusion based on Opposer’s use of two marks conjointly."

Nu Science argued that the public will see, understand, and pronounce applicant’s mark as "Ev’s Food" because they "(1) will see and understand 'EV' as short for 'Everett Story,' (2) know 'Everett Storey' either as the inventor of Opposer’s CELLFOOD supplement or as a trademark used by Opposer, and therefore (3) will view the mark EVSFOOD as a hybrid of EVERETT STOREY and CELLFOOD." However, Nu Science failed to provide any evidence that consumers "will undertake this multi-step perceptive process."

Comparing the opposed mark with Nu Science's marks individually, the Board found the opposed mark more dissimilar than similar to CELLFOOD and very dissimilar to EVERETT STOREY.

As to the goods, Nu Sciene's registrations covered vitamin and mineral supplements. Nu Science provided no evidence to prove that these goods are related to applicant's beverages and beverage components.

Here, the goods are not identical, which is to say, they’re different. And the lack of probative evidence in this case constrains us, as in IKEA Systems, from finding that the goods are related. We’re not super-consumers with expertise in particular markets. We must rely on parties to submit the evidence we need to decide their claims. On the evidence―or more precisely, the lack thereof―in this case, this factor weighs against a conclusion that confusion is likely.

As to channels of trade, the "spotty" evidentiary record left the Board "unable to determine which way this factor tips," and so the Board considered it to be neutral. And although the overlap in classes of consumers favored Nu Science, the import of that overlap "pales by comparison to the dissimilarities in the marks and goods."

False Suggestion of a Connection: Nu Science made applicant's intent the centerpiece of its case. The Board found that the evidence "evinces Applicant’s intent to create an association between EVSFOOD, on the one hand, and Dr. Everett Storey and CELLFOOD products, together, on the other hand."

But bad intent is not what Section 2(a) proscribes. Falsely suggesting to the consuming public a connection is the proscribed wrong. That question, like so many others in trademark law, is one of consumer perception.

The Board found no direct evidence supporting Nu Science's argument that consumers will understand that “EVS” is a reference to Everett Storey. The evidence fell "far short of supporting Opposer’s claim that '“Everett Storey' is a part of Opposer’s name or identity such that, when U.S. consumers see EVSFOOD, they will associate it with Opposer."

In sum, there was a clear lack of evidence that "(1) EVSFOOD is the same as, or a close approximation of, the name or identity previously used by Opposer and that (2) EVSFOOD would be recognized by consumers as such, in that it points uniquely and unmistakably to Opposer."

And so, the Section 2(a) claim failed.

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TTABlogger comment: Note that Judge Casagrande did not discuss applicant's bad intent in connection with the 2(d) claim. Perhaps his Trademark Reporter article explains why: "A Verdict For Your Thoughts? Why an Accused Trademark Infringer's Intent Has No Place in Likelihood of Confusion Analysis," 101 Trademark Reporter 1447 (September-October 2011).

Text Copyright John L. Welch 2024.