WYHA? TTAB Finds VITAWHEY Confusable with VITAWAYS for Dietary and Nutritional Supplements

Keep moving! Not much to see here. The Board upheld a Section 2(d) refusal of the mark VITAWHEY in the form shown below, for dietary and nutritional supplements "principally comprised of whey protein," finding confusion likely with the registered mark VITAWAYS for, inter alia, "dietary and nutritional supplements." Among other losing arguments, applicant noted that the registrant does not sell whey-protein supplements, but no way was that helfpful to its cause. In re Evlution Nutrition, LLC, Serial No. 98502228 (June 23, 2025) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Applicant conceded that the marks are phonetically similar. "The Board has  . . . found that similarities in pronunciation can lead to confusion notwithstanding distinctions in spelling."

We find that the nonidentical WHEY/WAYS endings do not offset the cumulative effect of the marks’ other similarities. Overall, the marks are very similar, regardless of what meaning, if any, might be assigned to the identical VITA- prefixes.

Although applicant's identifation of goods has a qualifier (the "whey" limitation), the registration has no qualifiers. "That means it covers all dietary and nutritional supplements, including those, like Applicant’s, principally containing whey protein."

As to applicant's assertion that registrant does not sell whey-specific supplements, the Board pointed out that "what the owner of the cited registration might or might not currently sell is irrelevant."

In sum, the goods are identical in part, and the second DuPont factor supported the refusal. The identical goods presumably travel through the same trade channels to the same classes of consumers.

Applicant asserts that its customers are "bodybuilders/athletes/other protein powder consumers who are interested in a whey-based powder” and that the customers who purchase goods offered by the owner of the registered mark are general consumers of vitamins. To the extent Applicant implies that consumers of dietary and nutritional supplements bearing the registered mark are different from its own customers, we reject the implication. The lack of restrictions in the registered mark means that all consumers of dietary and nutritional supplements—even that subset who are bodybuilders, athletes, and other protein powder consumers—are included.

Applicant claimed that the consumers of supplements are "sophisticated," but provided no supporting evidence. Nor was there evidence that the purchase of supplements may be an "impulse purchase. And so, the Board considered this factor to be neutral.

Finally, applicant argued that "vita" is a weak formative due to third-party use but again provided no supporting evidence. It feebly suggested that the USPTO’s “own database could confirm” its assertion, but the Board does not take judicial notice of registrations.

Since the relevant DuPont factors favored affirmance or were neutral, the Board sustained the refusal.

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Text Copyright John L. Welch 2025.