IN RE LIQUID HEALTH INC., 77770603 (TTAB 3-23-2011)
Serial No. 77770603United States Patent and Trademark OfficeTrademark Trial and Appeal Board
Mailed: March 23, 2011Page 1
Kelly Abreu of Law Office of Kelly Abreu for Liquid Health Inc.
Ellen Awrich, Trademark Examining Attorney, Law Office 116 (Michael W. Baird, Managing Attorney).
Before Bucher, Mermelstein and Wolfson, Administrative Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Liquid Health Inc. seeks registration on the Principal Register of the mark LIQUID HEALTH (in standardcharacter format) for “nutritional supplements” in International Class 5.[fn1]
This case is now before the Board on appeal from the final refusal of the Trademark Examining Attorney to register this designation based upon Section 2(d) of thePage 2
Trademark Act, 15 U.S.C. ? 1052(d). The Trademark Examining Attorney has taken the position that applicant’s mark, when used in connection with the identified goods, so resembles the mark LIQUA HEALTH (in typedformat) registered for “vitamins and mineral supplements” also in International Class 5,[fn2] as to be likely to cause confusion, to cause mistake or to deceive.
After the Trademark Examining Attorney made the refusal final, applicant appealed to this Board. The Trademark Examining Attorney and applicant have briefed the issues involved in this case. We affirm the refusal to register.
In urging registrability, applicant argues that its mark does not create a likelihood of confusion with the cited registered mark because applicant goods are different from those of registrant; that the respective goods will not move through the same trade channels; and that the marketing conditions are quite different.
By contrast, the Trademark Examining Attorney contends that the marks are similar as to appearance, sound and commercial impression; that the absence of actual confusion is not persuasive of a different result herein; that registrant and applicant are actually selling identicalPage 3
goods; that to the extent the goods are not overlapping, the record contains third-party registrations showing that “nutritional supplements” and “vitamins and mineral supplements” are of a kind that emanate from a single source; that there are no limits on the channels of trade; and that applicant’s own specimen of record reinforces the identical nature of the goods.
As a preliminary matter, the Trademark Examining Attorney has objected to a large portion of applicant’s brief inasmuch as it contains evidence not previously submitted into the record. The record in any application must be complete prior to appeal.37 C.F.R. ? 2.142(d). Accordingly, we agree with the objections of the Trademark Examining Attorney to copies of Internet screenprints copied into applicant’s brief, and have given no consideration to the images or any references to them in the final brief. TBMP ?? 1207 et seq. (2d ed. rev. 2004). See Rexall Drug Co. v. Manhattan Drug Co.,284 F.2d 391, 128 USPQ 114 (CCPA 1960); and In re PsygnosisLtd., 51 USPQ2d 1594 (TTAB 1999).
As we turn to a consideration of likelihood of confusion, our determination is based upon our analysis of all of the probative facts in evidence that are relevant to the factors bearing on this issue. See In re E. I. duPont de Nemours Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).Page 4
The legal briefs filed herein confirm that in this case, the two key considerations in our likelihood of confusion analysis are the similarities between the marks and the relationship between the goods. Federated Foods, Inc. v.Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
As to the relationship of the respective goods, we agree with the Trademark Examining Attorney that the record, including several dictionary definitions, supports the
conclusion that the term “nutritional supplements” encompasses “vitamins and mineral supplements” inasmuch as both vitamins and minerals are both taken as “nutritional supplements.” As further proof of this fact, the Trademark Examining Attorney points out that applicant’s own specimen clearly lists “VITAMINS MINERALS” as ingredients on the label of its nutritional supplement bottle (emphasis supplied).Page 5
In further support of her position, the Trademark Examining Attorney has submitted for the record a representative sampling of third-party registrations showing marks used in connection with goods of the type identified in applicant’s goods as well as the type identified by registrant in the cited registration:
Page 8
Third-party registrations which cover a number of differing goods and/or services, and which are based on use in commerce, although not evidence that the marks shown therein are in use on a commercial scale or that the public is familiar with them, may nevertheless have some probative value to the extent that they may serve to suggest that such goods or services are of a type which may emanate from a single source.
In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n. 6 (TTAB 1988). See In re Albert Trostel Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
Applicant also argues extensively in its final brief and reply brief about what it has learned on the Internet about registrant. In addition to our decision above not to consider this tardy evidence, it is well settled that the issue of likelihood of confusion between an applied-for mark and a registered mark must be determined on the basis of the goods as they are identified in the involved application and cited registration, not on the basis of whatever the extrinsic evidence may show. See Hewlett-Packard Co. v.Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n. 4 (Fed. Cir. 1993); Canadian ImperialBank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); Paula Payne Products Company v. JohnsonPublishing Company, 177 USPQ 76 (CCPA 1973); and In reWilliam Hodges Co., Inc., 190 USPQ 47 (TTAB 1976). In this regard, it would bePage 9
improper to permit applicant to limit or modify the registrant’s goods based upon extrinsic evidence. See In reBercut-Vandervoort Co., 229 USPQ 763, 764 (TTAB 1986). Hence, we must presume that registrant’s vitamins and mineral supplements as identified in the cited registration are available to ordinary U.S. consumers at retail, whether it is by putting things in one’s shopping basket when clicking through an online website or walking down the aisles of a brick-and-mortar enterprise.
Accordingly, we find that these respective goods are closely related, if not identical, and will move through the same channels of trade to the same classes of ordinary consumers, and these several related du Pont factors weighs heavily in favor of finding a likelihood of confusion herein.
We turn next to the du Pont factor focusing on the similarities or dissimilarities in the appearance, sound, connotation and commercial impression of the respective marks.Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin MaisonFondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
We agree with the Trademark Examining Attorney that as to appearance, the endings of the first word in the respective marks (e.g., “-ID” versus “?A”) is insufficientPage 10
to overcome the overall similar appearance of the marks. In its brief, applicant restates the general principle that our focus should be on the recollection of the average purchaser who normally retains a general rather than a special impression of trademarks. Chemetron Corp. v. Morris Coupling Clamp Co. 203 USPQ 537, 540-541 (TTAB 1979); and AirCorp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Nonetheless, in this same paragraph, applicant argues that modern consumers accustomed to the demanding precision of Internet domain names, etc., are accustomed to absolute precision. However, the test for likelihood of confusion is not whether the marks can be distinguished when subjected to a side-by-side comparison as this does not reflect the reality of the marketplace. In this case, a very minor change in the middle syllable of words with identical structure creates marks that are quite similar as to appearance and sound. As noted by the Trademark Examining Attorney, a slight difference in the sound of similar marks will generally not avoid a likelihood of confusion. In re Energy Telecomm. Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983).
As to connotation, applicant argues that the marks have different meanings because the word “Liquid” has a well-known meaning while the term “Liqua” does not. SeePage 11
applicant’s brief at 3. However, within registrant’s composite mark, the term “Liqua” bears such a strong resemblance to the word “Liquid” that it will immediately bring to mind the same connotation.
Accordingly, we conclude that when compared in their entireties, the marks in this case ? LIQUAHEALTH and LIQUID HEALTH ? create the same commercial impressions.
Finally, we turn to the du Pont factor dealing with the length of time during and conditions under which there has been concurrent use without evidence of actual confusion. Applicant argues that coexistence over a period of fourteen years provides strong evidence that confusion is not likely to occur in the future. As to whether there has been sufficient opportunity for confusion to occur, the record contains no indication of the level of sales or advertising of these nutritional supplements by applicant. The absence of any instances of actual confusion is a meaningful factor only where the record indicates that, for a significant period of time, an applicant’s sales and advertising activities have been so appreciable and continuous that, if confusion were likely to happen, any actual incidents thereof would be expected to have occurred and would have come to the attention of one or both of these trademark owners. Similarly, we have no information concerning thePage 12
extent of registrant’s use, and thus we cannot tell whether there has been sufficient opportunity for confusion to occur.See In re Kangaroos U.S.A., 223 USPQ 1025, 1026-1027 (TTAB 1984) [arguments based on an asserted lack of confusion are of little use in ex parte cases].
All of these enumerated factors materially reduce the probative value of applicant’s argument regarding asserted lack of actual confusion. Therefore, applicant’s claim that no instances of actual confusion have been brought to applicant’s attention is not indicative of an absence of a likelihood of confusion.See Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In any event, we are mindful of the fact that the test under Section 2(d) of the Act is likelihood of confusion, not actual confusion.
In conclusion, we find that the goods are closely related, if not identical; that they will move through the same channels of trade to the same classes of ordinary consumers; and that the marks are confusingly similar.
Decision: The refusal to register under Section 2(d) of the Act is hereby affirmed.
[fn1] Application Serial No. 77770603 was filed on June 29, 2009, based upon applicant’s claim of first use anywhere and first use in commerce at least as early as January 1, 1997. No claim is made to the exclusive right to use the word “Liquid” apart from the mark as shown. [fn2] Registration No. 2166598 issued on June 16, 1998; renewed. [fn3] Registration No. 3251743 issued on June 12, 2007. [fn4] Registration No. 3262273 issued on July 10, 2007. No claim is made to the exclusive right to use the word “Noni” apart from the mark as shown. [fn5] Registration No. 3327548 issued on October 30, 2007. [fn6] Registration No. 3360909 issued on December 25, 2007. [fn7] Registration No. 3455377 issued on June 24, 2008. No claim is made to the exclusive right to use the word “Nutrition” apart from the mark as shown. [fn8] Registration No. 3538975 issued on November 25, 2008. No claim is made to the exclusive right to use the word “Health” apart from the mark as shown. [fn9] Registration No. 3616116 issued on May 5, 2009. No claim is made to the exclusive right to use the word “Nutrition” apart from the mark as shown. [fn10] Registration No. 3644979 issued on June 23, 2009. [fn11] Registration No. 3645013 issued on June 23, 2009. No claim is made to the exclusive right to use the word “Body” apart from the mark as shown. [fn12] Registration No. 3651161 issued on July 7, 2009. [fn13] Registration No. 3652626 issued on July 7, 2009. [fn14] Registration No. 3665132 issued on August 4, 2009. [fn15] Registration No. 3681620 issued on September 8, 2009. [fn16] Registration No. 3697224 issued on October 13, 2009. [fn17] Registration No. 3713410 issued on November 17, 2009.