Active Life Global Solutions Ltd.

Trademark Trial and Appeal Board

Dec 31, 2015

No. 86187537 (T.T.A.B. Dec. 31, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: December 31, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Active Life Global Solutions Ltd.
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Serial No. 86187537

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Matthew H. Swyers of The Trademark Company,
for Active Life Global Solutions Ltd.
Patty Evanko, Trademark Examining Attorney, Law Office 119,
J. Brett Golden, Acting Managing Attorney.
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Before Zervas, Gorowitz and Heasley,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Active Life Global Solutions Ltd. (“Applicant”) seeks registration on the
Principal Register of the standard character mark SECOND WIND for “Dietary and
nutritional supplements; Dietary supplements; Nutritional supplements” in
International Class 5.1

1 Application Serial No. 86187537, filed February 7, 2014, claiming an intent to use the
mark in commerce pursuant to Trademark Act § 1(b), 15 U.S.C. § 1051(b).
Serial No. 86187537
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of confusion
with the following two registered marks:
● Reg. No. 2200619 (renewed September 19, 2008) on the Principal
Register for the typed mark2 “2ND WIND” for “dietary supplements
made with herbs in a powder form and capsulated” in International
Class 5; and

● Reg. No. 4512946 on the Supplemental Register for the standard
character mark “2ND WIND” for “energy drinks” in International
Class 32.

After the Examining Attorney denied Applicant’s request for reconsideration,
Applicant filed an appeal. Both Applicant and the Examining Attorney have filed
briefs.
I. Applicable Law
Our determination under Trademark Act Section 2(d) is based on an analysis of
the probative facts in evidence that are relevant to the factors bearing on a
likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering
the evidence of record on these factors, we keep in mind that “[t]he fundamental
inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the

2 Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R. § 2.52, was amended to
replace the term “typed” drawing with “standard character” drawing. A mark depicted as a
typed drawing is the legal equivalent of a standard character mark.
Serial No. 86187537
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essential characteristics of the goods and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014).
For purposes of our likelihood of confusion analysis, we consider only
Registration No. 2200619, which, of the two cited registrations, identifies goods
more closely related to those identified in the subject application. If there is no
likelihood of confusion between it and the application, then it is less likely that
there would be confusion between the application and Registration No. 4512946.
As argued by Applicant and the Examining Attorney, the relevant du Pont
factors in this appeal are the similarities or dissimilarities of the marks, goods and
trade channels, as well as consumer care and sophistication.
A. Similarity or Dissimilarity of the Goods/Channels of Trade/Consumers.
With regard to the goods, channels of trade and classes of consumers, we make
our determinations under these factors based on the goods as they are identified in
the registration and application. See In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002);
Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990).
Both the application and Registration No. 2200619 identify “dietary
supplements,” albeit registrant’s dietary supplements are identified as consisting of
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herbs in a powder form and capsulated. Because Applicant’s “dietary supplements”
are not restricted in form, they include the type of dietary supplements identified in
the registration. Thus, the goods are identical in part. See Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found as to the entire class if there is likely to be
confusion with respect to any item that comes within the identification of goods or
services in that class).
As for registrant’s nutritional supplements, Applicant acknowledges that they
and dietary supplements “are related goods because supplements are perceived to
augment nutritional deficiencies in order to achieve general well-being.”3 We agree.
Moreover, the Examining Attorney submitted several third-party registrations that
list both nutritional and dietary supplements.4 Copies of use-based, third-party
registrations may serve to suggest that the goods are of a type which may emanate
from a single source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993).
Applicant does argue, however, that Applicant’s and registrant’s goods are
dissimilar because “Applicant’s goods are intended to achieve and maintain good
health and well-being [while] both the cited marks seem to be used for performance
enhancement and increasing energy in sports, exercise and athletic activities”5 Such

3 Applicant’s Brief at 15, 4 TTABVUE 16.
4 See Registration Nos. 4498619, 4297569, 4419804 and 4521189, submitted with first
Office Action.
5 Applicant’s Brief at 15-16, 4 TTABVUE 16-17.
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limitations are not reflected in the identifications of goods and hence may not be
considered. Stone Lion, 111 USPQ2d at 1534.
With respect to the channels of trade and class of consumers, we follow the
principle that goods are presumed to move in all channels of trade normal for such
items, and that they are purchased by all of the usual consumers for such goods. In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-
Mart, Inc., 119 USPQ 139 (CCPA 1958)). The fact that the goods are identical in
part means that we must presume that their purchasers and channels of trade are
also identical. Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given
the in-part identical and in-part related nature of the parties' goods, and the lack of
any restrictions in the identifications thereof as to trade channels and purchasers,
these clothing items could be offered and sold to the same classes of purchasers
through the same channels of trade”); In re Smith and Mehaffey, 31 USPQ2d 1531,
1532 (TTAB 1994) (“Because the goods are legally identical, they must be presumed
to travel in the same channels of trade, and be sold to the same class of
purchasers”). Applicant makes no argument that its channels of trade or classes of
consumers differ from those of the cited registrant.
We conclude that the application and registration list identical or otherwise
related goods, and that those goods move in identical channels of trade to the same
classes of consumers. These du Pont factors therefore strongly favor a finding of a
likelihood of confusion.

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B. Similarity or Dissimilarity of the Marks.
We compare the marks for similarities and dissimilarities in appearance, sound,
connotation and commercial impression. Palm Bay, 73 USPQ2d at 1692. The test is
not whether the marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently similar in terms of their
overall commercial impression that confusion as to the source of the goods offered
under the respective marks is likely to result. Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation
omitted). Under actual marketing conditions, consumers do not necessarily have the
luxury of making side-by-side comparisons between marks, and must rely upon
their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ
255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific impression of trademarks. In
re Association of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). In addition, “when marks
would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.” In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010), citing Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
The marks SECOND WIND and 2ND WIND are identical in sound, and highly
similar in appearance due to the shared term WIND as the second of two terms in a
word mark. Applicant does not disagree that there are similarities, stating, “we
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agree that the Applicant’s SECOND WIND and the cited marks 2nd WIND are
similar in sound. There is also a resemblance in appearance as both marks use the
term “WIND.”6
As for meaning, the record establishes that “2nd” and “second” have the same
meaning.7 Further, “second wind” is defined in the record as (i) “a feeling of new
energy that allows you to continue to do something after you had begun to feel
tired;”8 and (b) “the return of relative ease of breathing after the initial exhaustion
that occurs during continued physical exertion” and “restored energy or strength.”9
Applicant argues that the meaning and commercial impression of the marks
“could” differ when considered in connection with the associated goods. We disagree.
First, as noted above, the goods are identical in part, so the same meaning and
commercial impression would attach to both. Second, we see no reason why the
meaning of “second wind” or “2d wind” would not be the same for both marks,
whether used on dietary or nutritional supplements.

6 Applicant’s Brief at 11, 4 TTABVUE 12.
7 First Office Action, definitions from vocabulary.com and dictionary.com, i.e., “coming next
after the first in position in space or time or degree or magnitude.”
8 We take judicial notice of this definition, accessed by the Examining Attorney on
September 16, 2015 at http://www.merriamwebster.com/dictionary/second%20wind and
submitted with her Brief. The Board may take judicial notice of dictionary definitions,
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist
in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375,
1377 (TTAB 2006).
9 We take judicial notice of this definition, accessed by the Examining Attorney on
September 16, 2015 at https://www.ahdictionary.com and submitted with her Brief.
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In view of the foregoing, we find that the marks are identical in sound, meaning
and commercial impression, and highly similar in appearance. This du Pont factor
strongly favors the finding of a likelihood of confusion.
C. Purchaser Sophistication
Applicant argues:
The purchasers of the Applicant dietary and nutritional
supplements are people who seek to achieve and maintain good health
and general well-being.

The purchasers of the both the 2nd WIND cited marks supplements
… are likely to include athletic, sporty people, or those who engage in
strenuous physical exercise, e.g., core, weight lifting, red-cord, hiking,
cycling. Energy drinks and supplements are used to fuel the body
because eating food is discouraged before any exercise.

Supplement products are not impulse buys. Careful thought and
consideration is given before any supplement is purchased given that
these products are ingested. Inappropriate use could lead to serious
physical side effects and even death. However, when a consumer finds
a supplement brand that is effective and responsive to their needs, the
buyer tends to be loyal to that brand.

Finally, supplements are generally pricey and hence, the relevant
buyer can be relied upon to make discerning choices.10

Applicant does not refer to any evidence in the record in support of its
arguments. The record does contain, however, a Wikipedia entry for “dietary
supplement” which indicates that “[s]upplements may create harm” and that “[t]he
number of incidents of liver damage from dietary supplements has tripled in a
decade.”11 While we do not know whether the information in the entry is common
knowledge, we find that the relevant consumers for dietary and nutritional products

10 Applicant’s Brief at 16, 4 TTABVUE 17.
11 Req. for Recon.
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may exercise at least a moderate degree of care when purchasing dietary and
nutritional supplements and thus, this du Pont factor weighs slightly against
finding that there is a likelihood of confusion,.
D. Balancing the du Pont Factors
We found that (i) the application and registration list identical and highly
similar goods, and that those goods are sold in identical channels of trade to the
same classes of consumers; and (ii) the marks are identical in sound, meaning and
commercial impression, and highly similar in appearance. In addition, we found
that the relevant consumers for dietary and nutritional products may exercise at
least a moderate degree of care when purchasing dietary and nutritional
supplements. 2d WIND is a contraction of SECOND WIND, however, and any such
consumer care is tempered by the natural tendency of consumers to shorten the
pronunciation of marks or trade names. See, e.g., In re Abcor Development Corp.,
588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring); Marshall Field
& Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992). In any event, our
finding regarding purchaser care does not outweigh the other du Pont factors. We
therefore conclude that Applicant’s mark for “Dietary and nutritional supplements;
Dietary supplements; Nutritional supplements” is likely to be confused with the
mark which is the subject of Registration No. 2200619 for “dietary supplements
made with herbs in a powder form and capsulated.”
Decision: The refusal under Section 2(d) to register Applicant’s mark SECOND
WIND is affirmed.