Akuna Health Products Inc.

Trademark Trial and Appeal Board

Jan 8, 2015

No. 85751838 (T.T.A.B. Jan. 8, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 8, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Akuna Health Products Inc.
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Serial No. 85751838
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Celina Fenster for Akuna Health Products Inc.

Charles H. Hiser IV, Trademark Examining Attorney, Law Office 112,
Angela Wilson, Managing Attorney.
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Before Kuhlke, Adlin and Masiello, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Akuna Health Products, Inc. (“Applicant”) seeks registration of the mark
ALVEO, in standard characters, for “Dietary supplements, namely, nutritional
drinks.”1 The Examining Attorney refused registration under Section 2(d) of the
Act, on the ground that Applicant’s mark so resembles the previously-registered
mark ALVIOLIFE, in standard characters, for “Dietary and nutritional

1 Application Serial No. 85751838, filed October 11, 2012 based on first use dates of August
15, 2001. The application includes the following translation statement: “The wording
‘ALVEO’ has no meaning in a foreign language.”
Serial No. 85751838
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supplements” and related products,2 that use of Applicant’s mark in connection with
Applicant’s goods is likely to cause confusion or mistake or to deceive. After the
refusal became final, Applicant appealed and filed a motion for reconsideration
which was denied. Applicant and the Examining Attorney filed briefs.
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative
facts in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d)
goes to the cumulative effect of differences in the essential characteristics of the
goods and differences in the marks.”).
Turning first to the goods and channels of trade, they are legally identical, as
Registrant’s “dietary and nutritional supplements” encompass Applicant’s “Dietary
supplements, namely, nutritional drinks.” Neither identification includes any
limitations with respect to channels of trade.

2 Registration No. 4091463, issued January 24, 2012. In its entirety, the registration’s
identification of goods is: “Dietary and nutritional supplements; Dietary food supplements;
Dietary supplements; Dietary supplements for human consumption; Food supplements;
Health food supplements; Herbal supplements; Homeopathic supplements; Nutraceuticals
for use as a dietary supplement; Nutritional supplements; Vitamin and mineral
supplements.”
Serial No. 85751838
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Applicant stresses that Registrant’s product “is used for medicinal purposes
and specifically for respiratory ailments,” and claims that as a result Applicant’s
“goods are targeted at completely different markets” than Registrant’s. Applicant’s
Appeal Brief at 6. However, it does not matter that Registrant in fact offers
“medicinal” products intended to treat respiratory ailments when its identification
of goods is not so limited. Indeed, where, as here, Applicant’s and Registrant’s
identifications of goods contain no limitations, they are presumed to encompass all
goods of the type described, and the goods are presumed to move in all normal
channels of trade and be available to all classes of consumers. Stone Lion Capital
Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed.
Cir. 2014) (“An application with ‘no restriction on trade channels’ cannot be
‘narrowed by testimony that the applicant’s use is, in fact, restricted to a particular
class of purchasers.’”); Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d
1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); see also
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even
though there was no evidence regarding channels of trade, the Board was entitled to
rely on this legal presumption in determining likelihood of confusion). We are bound
by the parties’ identifications and we simply cannot limit the goods, channels of
trade or classes of customers to what Applicant’s evidence shows them to be. In re
Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986) (“It is well settled
that in a proceeding such as this, the question of likelihood of confusion must be
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determined by an analysis of the marks as applied to the goods identified in the
application vis-à-vis the goods recited in the registration, rather than what extrinsic
evidence shows those goods to be.”); see also, Tuxedo Monopoly, Inc. v. General Mills
Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re Thor Tech
Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009) (“we must also analyze the similarity
or dissimilarity and nature of the goods based on the description of the goods set
forth in the application and the registration at issue … we may not limit or restrict
the [goods] listed in the cited registration based on extrinsic evidence”).
The legal identity of Applicant’s and Registrant’s goods and their overlapping
channels of trade not only weigh heavily in favor of a finding of likelihood of
confusion, but also reduce the degree of similarity between the marks necessary to
find a likelihood of confusion. In re Viterra, 101 USPQ2d at 1908; In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Max Capital
Group Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010).
With respect to the marks, we must compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). That is, we may
not dissect the marks into their various components. In re Nat’l Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v.
Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981).
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Here, the marks are similar. Applicant’s mark and the first part of
Registrant’s mark are identical but for a single letter. As a result, Applicant’s mark
ALVEO looks and sounds quite similar to the first part of Registrant’s mark,
ALVIO.
With respect to how the marks sound, Applicant contends that consumers
might pronounce Registrant’s mark with a long “i” sound and Applicant’s with a
long “e” or “a” sound. Applicant’s Appeal Brief at 4. However, “there is no correct
pronunciation of a trademark, and consumers may pronounce a mark differently
than intended by the brand owner.” In re Viterra, 101 USPQ2d at 1912.
Furthermore, the Examining Attorney points out and has introduced evidence that
an “i” is often pronounced with a long “e” sound (for example “trio”), and accordingly
the first part of Registrant’s mark and Applicant’s mark could be pronounced
exactly the same way. Office Action of December 16, 2013 (printout from
“pronuncian.com”). See Centraz Industries, Inc. v. Spartan Chemical Co., Inc., 77
USPQ2d 1698, 1701 (TTAB 2006) (in considering similarity between ISHINE and
ICE SHINE, finding “quite reasonable opposer’s assessment that purchasers may
roll the ‘s’ sound from the pronunciation of ‘ice’ into the ‘sh’ sound beginning the
second syllable ‘shine,’” and concluding that “[i]nasmuch as the goods may be
ordered by phone or recommended by word of mouth, the similarity in sound is an
important factor in comparing the marks, especially where, as here, identical
products are involved.”); Interlego AG v. Abrams/Gentile Entertainment Inc., 63
USPQ2d 1862, 1863 (TTAB 2002).
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While the cited mark includes the word LIFE after ALVIO, the Examining
Attorney has introduced evidence indicating that LIFE may have less source
identifying significance for these types of goods. In fact, the following marks have
the same structure as Registrant’s, and are registered based on use for products
similar or identical to those identified in the application and cited registration:
ZIOLIFE & Design (Reg. No. 3764285) for “Dietary and
nutritional supplements;”

SUNLIFE & Design (Reg. No. 2710139) for “dietary
supplements, food supplements, nutritional supplements
…;”

NOVALIFE (Reg. No. 3446713) for “Dietary food
supplements; Dietary supplemental drinks; Dietary
supplements;”

VITAMINLIFE (Reg. No. 3246972) for “Retail and online
retail store services featuring dietary supplements, health
supplements, vitamins, minerals, nutritional supplements
…;”

HERBALIFE (Reg. No. 3324677) for “Dietary
supplements consisting of vitamins, minerals, herbs, fiber
…” and “nutritional fortified protein drink mixes;” and

CITRULIFE & Design (Reg. No. 4292747) for “Dietary
supplements;”

VEGLIFE (Reg. No. 4481175) for “Dietary supplements;”

Denial of Request for Reconsideration July 7, 2014.3 While third-party registrations
are not evidence of use or what goes on in the marketplace, AMF Inc. v. American

3 In the Denial of Applicant’s Request for Reconsideration, the Examining Attorney also
introduced a large number of additional registrations for marks structured differently than
Registrant’s, but which nonetheless include the word “life” and are registered for dietary or
nutritional supplements.
Serial No. 85751838
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Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973), they may
be relevant to show that a mark or a portion thereof is descriptive or suggestive in a
particular field. In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). We find
the word LIFE to be conceptually weak for dietary and nutritional supplements, as
“life” may suggest products intended to extend or improve a consumer’s life, such as
dietary or medicinal goods. See Applicant’s Request for Reconsideration (printout of
webpage for Registrant’s ALVIOLIFE product, which indicates that it is “intended
to promote healthy respiratory tract”). Furthermore, in contrast to the commonly-
used word “life,” ALVIO is arbitrary, and accordingly is more likely to function as a
source-identifier. It also appears first in Registrant’s mark. The first part of a mark
is often its most prominent and dominant feature. Presto Prods. Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and
remembered”); see also, Palm Bay Imports Inc., 73 USPQ2d at 1692; Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). It is settled that one feature of a mark, here the arbitrary term
ALVIO which appears first, may be more significant than another, and it is not
improper to give more weight to the dominant feature of a mark in determining its
commercial impression. In re Nat’l. Data Corp., 224 USPQ at 751 (“There is
nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on
Serial No. 85751838
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consideration of the marks in their entireties. Indeed, this type of analysis appears
to be unavoidable.”).
In short, because the marks in their entireties look and sound similar, and
there is no evidence that the nearly identical portions of the marks, ALVEO and
ALVIO, convey a specific meaning, they are more similar than dissimilar. See
International Paper Co. v. Valley Paper Co., 468 F.2d 937, 175 USPQ 704 (CCPA
1972) (DATA for “writing, typewriter and printing paper” confusingly similar to
DATA-SPEED for “paper sold in bulk rolls or bulk reams for conversion only into
business forms”); In re Fiesta Palms LLC, 85 USPQ2d 1360 (TTAB 2007) (CLUB
PALMS MVP for casino services confusingly similar to MVP for casino services
offered to preferred customers identified by special identification cards); In re Rexel
Inc., 223 USPQ 830, 832 (TTAB 1984) (“we are firmly of the opinion that purchasers
who encounter applicant’s ‘LITTLE GOLIATH’ stapler kits and registrant’s
‘GOLIATH’ large diameter woodcased pencils are likely to believe … that both
products emanate from or are in some way associated with the same source”);
Johnson Publishing Co. v. International Development Ltd., 221 USPQ 155 (TTAB
1982) (EBONY for cosmetics confusingly similar to EBONY DRUM for hairdressing
and conditioner). While the word LIFE in Registrant’s mark adds the suggestive
meaning discussed above, this difference does not sufficiently distinguish the
marks. This factor also weighs in favor of a finding of likelihood of confusion.
There is no relevant evidence or argument concerning the remaining
likelihood of confusion factors, and we therefore treat them as neutral.
Serial No. 85751838
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Conclusion
After considering all of the evidence of record as it pertains to the relevant
du Pont factors, including all of Applicant’s arguments and evidence, even if not
specifically discussed herein, we find that confusion is likely because the goods and
channels of trade are legally identical and the marks are similar.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.