Ayush Herbs, Inc.v.MDR Fitness Corp.

Trademark Trial and Appeal Board

Oct 24, 2018

No. 92061544 (T.T.A.B. Oct. 24, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 24, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Ayush Herbs, Inc.
v.
MDR Fitness Corp.
_____

Cancellation No. 92061544
_____

Ryan M. Kaiser of Amin Talati Upadhye, LLP,
for Ayush Herbs, Inc.
Catherine F. Hoffman and James A. Stepan of Mayback & Hoffman, P.A.
for MDR Fitness Corp.
_____

Before Bergsman, Lykos and Goodman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
MDR Fitness Corp. (“Respondent”) is the owner of Registration No. 4532087 for
the mark CARDIO TONE (standard characters) on the Principal Register for “dietary
and nutritional supplements,” in Class 5.1 Respondent disclaimed the exclusive right
to use the word “Cardio.”

1 Registered May 20, 2014 based on application Serial No. 85892193 filed April 1, 2013,
claiming first use anywhere and first use in commerce as of November 1, 1997.
Cancellation No. 92061544
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Ayush Herbs, Inc. (“Petitioner”) filed a Petition to Cancel Respondent’s registered
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
that Respondent’s mark for the listed goods so resembles Petitioner’s registered mark
CARDITONE (standard characters) for “dietary supplements,” in Class 5, as to be
likely to cause confusion.2 Petitioner also pleaded prior common law use of
CARDITONE in connection with dietary supplements.
Petitioner for many years and since long prior to any date
of first use upon which Registrant can rely, has adopted
and continuously used the term “CARDITONE” as a
trademark for use in connection [with] its dietary
supplement product.3
Respondent, in its Answer, denied the salient allegations in the Petition for
Cancellation.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Respondent’s registration file.4 The parties introduced the
testimony and evidence listed below:
A. Petitioner’s testimony and evidence.

2 Registration No. 4097498, registered February 14, 2014; Section 8 declaration accepted and
Section 15 declaration acknowledged.
3 Petitioner for Cancellation ¶1 (1 TTABVUE 3).
4 Because Respondent’s registration file is automatically of record, it was not necessary for
Respondent to introduce a copy of Respondent’s registration (38 TTABVUE) or registration
file (39 TTABVUE).
Cancellation No. 92061544
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1. Testimony affidavit of Dr. Shailinder Sodhi, Petitioner’s President and
cofounder;5
2. Testimony affidavit of Gunny Sodhi, Petitioner’s Vice President;6
3. Notice of reliance on a copy of Petitioner’s pleaded registration printed from
the USPTO electronic database showing the current status of and title to
the registration;7
4. Notice of reliance on a copy of the September 23, 2009 Office Action refusing
to register the mark in Petitioner’s pleaded registration based on
Respondent’s cancelled registration (Registration No. 2572462) for the
mark CARDIO TONE and design for “dietary and nutritional
supplements,” in Class 5;8
5. Notice of reliance on a copy of Respondent’s cancelled registration
(Registration No. 2572462) for the mark CARDIO TONE and design for
“dietary and nutritional supplements,” in Class 5, printed from the USPTO
electronic database showing the current status of the registration;9

5 26 TTABVUE.
6 27 TTABVUE. The confidential exhibits attached to the Gunny Sodhi affidavit are posted
at 28 TTABVUE.
7 29 TTABVUE.
8 30 TTABVUE.
9 31 TTABVUE. It was not necessary for Respondent to introduce Respondent’s cancelled
registration a second time at 40 TTABVUE. Once evidence has been made of record by one
party, it may be referred to by any party for any purpose permitted by the Federal Rules of
Evidence. Trademark Rule 2.120(k)(7), 37 C.F.R. § 2.120(k)(7).
Cancellation No. 92061544
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6. Notice of reliance on Respondent’s response to Petitioner’s interrogatory
No. 5 and Respondent’s revised responses to Petitioner’s first set of
interrogatories;10
7. Notice of reliance on excerpts from the discovery deposition of Patricia
Riley, Respondent’s Chief Executive Officer and founder;11
8. Notice of reliance on excerpts from magazine websites showing the
purported circulation for the magazines in which Respondent purportedly
advertised;12
9. Notice of reliance on an excerpt from Amazon.com showing an
advertisement for Respondent’s product;13 and
10. Rebuttal testimony affidavit of Gunny Sodhi.14
B. Applicant’s testimony and evidence.

1. Notice of reliance on Respondent’s cancelled registration file history;15
2. Notice of reliance on excerpts from Respondent’s website;16
3. Notice of reliance on excerpts from Respondent’s website printed from the
Wayback Machine;17

10 32 TTABVUE. Responsive documents designated confidential are posted at 33 TTABVUE.
11 34 TTABVUE. Confidential exhibits are posted at 35 TTABVUE.
12 36 TTABVUE.
13 37 TTABVUE.
14 54 TTABVUE.
15 41 TTABVUE.
16 42 TTABVUE.
17 43 TTABVUE.
Cancellation No. 92061544
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4. Notice of reliance on excepts from Petitioner’s website;18
5. Notice of reliance on a copy of Respondent’s Patent No. 5976568;19
6. Notice of reliance on a copy of Respondent’s Patent No. 5948443;20
7. Notice of reliance on an excerpt from the RUVED.com website;21
8. Notice of reliance on copies of 70 third-party registrations and their
prosecution history files for registered marks containing the term “Cardio”
and one registration and its prosecution file history for a mark containing
the term “Cardi,” all registered for dietary or nutritional supplements or
vitamins;22 and
9. Testimony declaration of Patricia Riley, Respondent’s Chief Executive
Officer and founder.23
II. Standing
A threshold issue in every inter partes case is the plaintiff’s standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc., 94
USPQ2d 1942, 1945 (TTAB 2010). To establish its standing, Petitioner must prove
that it has a “real interest,” i.e., a “reasonable” basis for its belief of damage. See

18 44 TTABVUE.
19 45 TTABVUE.
20 46 TTABVUE.
21 47 TTABVUE.
22 48-49 TTABVUE.
23 50-52 TTABVUE. The confidential exhibits attached to the Riley declaration are posted at
53 TTABVUE.
Cancellation No. 92061544
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Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185, 189 (TTAB 1982).
Petitioner has established its standing by properly introducing into evidence its
pleaded registration. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1844 (Fed. Cir. 2000); N.Y. Yankees P’ship v. IET Prods. & Servs.,
Inc., 114 USPQ2d 1497, 1501 (TTAB 2015). Applicant, in its brief, does not contest
Petitioner’s standing.
III. Priority
In a cancellation proceeding, it is the Board’s practice “to hold that [as a practical
matter] a petitioner, whether a registrant or not, must, in the first instance, establish
prior rights in the same or a similar mark and the respondent in turn can defeat the
petitioner’s claim of damage by establishing that, as between the parties, it possesses
[prior] superior rights in the mark sought to be cancelled.” Brewski Beer Co. v.
Brewski Bros. Inc., 47 USPQ2d 1281, 1284 (TTAB 1998) (quoting U.S. Mineral Prods.
v. GAF Corp., 197 USPQ 301, 305 (TTAB 1977)); Pamex Foods, Inc. v. Clover Club
Foods, Inc., 201 USPQ 308, 313 (TTAB 1978) (“Thus, the Board has taken the
position, in essence, that the registrations of each party offset each other; that
petitioner as a plaintiff, must, in the first instance, establish prior rights in the same
or similar mark . . .”). See also Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC,
110 USPQ2d 1458, 1474 (TTAB 2014) (“In a cancellation proceeding such as this one
where both parties own registrations, priority is in issue.”).
Cancellation No. 92061544
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Of course, Petitioner or Respondent may rely on its registration for the limited
purpose of proving that its mark was in use as of the application filing date. Thus, a
petitioner–whose application filing date was earlier than respondent’s application
filing date–could take its chances and elect to make of record simply a copy(s) of its
registration(s). Trademark Rules 2.122(d)(1) and 2.122(d)(2). By so doing, petitioner’s
proven first use date of its mark would then be the filing date of the application, i.e.
its constructive use date. However, if respondent thereafter proved an actual first use
date pre-dating petitioner’s filing date, the issue of priority, and hence petitioner’s
Section 2(d) claim, would be resolved in favor of respondent.
Petitioner’s pleaded registration (Registration No. 4097498) was registered on
February 14, 2012 based on an application filed on June 24, 2009. Respondent’s
registration issued May 20, 2014 based on an application filed April 1, 2013. However,
Patricia Riley, Respondent’s Chief Executive Officer and founder, testified that the
records of her company show that Respondent sold CARDIO TONE products at least
as early as September 4, 1997.24
Dr. Shailinder Sodhi, Petitioner’s President and founder, testified that Petitioner
“adopted the CARDITONE mark and began selling CARDITONE in the state of
Washington in 1990. We expanded sales of CARDITONE beyond Washington in
1993.”25 Gunny Sodhi, Petitioner’s Vice President, introduced a “Profit Analysis Item

24 Riley Testimony Decl. ¶¶16-20 and Exhibit 5 (confidential) (50 TTABVUE 8 and 53
TTABVUE 3-1146).
25 Shailinder Sodhi Testimony Aff. ¶3 (26 TTABVUE 8). See also Shailinder Sodhi Testimony
Aff. ¶7 (26 TTABVUE 9) (“Since 1993, [Petitioner] has marketed and sold CARDITONE
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Summary” derived from Petitioner’s accounting software showing sales of
CARDITONE in 1995.26 Also, Petitioner introduced a copy of a product catalog from
1996 advertising the sale of CARDITONE dietary supplements.27
We find that Petitioner has proven prior use of its CARDITONE mark. Applicant,
in his brief, does not contest Petitioner’s priority.28
IV. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
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) (“Du Pont”) cited in B&B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each Du Pont factor that is relevant or for which there is evidence of
record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015) (“While we have considered each factor for which we have
evidence, we focus our analysis on those factors we find to be relevant.”). In any

(using the CARDITONE trademark) throughout the U.S. continuously and without
interruption.”).
26 Gunny Sodhi Testimony Aff. ¶6 and Exhibit 5 (confidential) (27 TTABVUE 10 and 28
TTABVUE 3).
27 Shailinder Sodhi Testimony Aff. ¶7 and Exhibit 3 (26 TTABVUE 9 and 22-29).
28 “[T]o the extent that [Petitioner] has priority for use in interstate commerce, it is not by
much.” Respondent’s Brief, p. 2 (59 TTABVUE 7).
Cancellation No. 92061544
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likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also
In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017)
(“The likelihood of confusion analysis considers all DuPont factors for which there is
record evidence but ‘may focus … on dispositive factors, such as similarity of the
marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. The similarity or dissimilarity and nature of the goods, established, likely-to-
continue channels of trade and consumers to whom sales are made.

The description of goods in Petitioner’s pleaded registration is “dietary
supplements.”29 The description of goods in Respondent’s registration is “dietary and
nutritional supplements.”30 Accordingly, the goods are in part identical.
Because the goods described in Respondent’s registration and Petitioner’s
registration are in part identical, we presume that the channels of trade and classes

29 Dr. Shailinder Sodhi testified that “CARDITONE is a dietary supplement which was
carefully formulated to help maintain blood pressure and support heart function.”Shailinder
Sodhi Testimony Aff. ¶4 (26 TTABVUE 8). See also Gunny Sodhi Testimony Aff. ¶3 (27
TTABVUE 9) (“[Petitioner] sells a number of dietary supplements. One of [Petitioner’s]
products is CARDITONE, which is used to support heart health.”).
30 Patricia Riley testified that “CARDIO TONE products are dietary and nutritional
supplements directed at persons with heart issues or a family history of heart issues.” Riley
Testimony Decl. ¶5 (50 TTABVUE 6).
Cancellation No. 92061544
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of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (legally identical goods are presumed to travel in same channels
of trade to same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752,
159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the
channels of trade and classes of purchasers are considered to be the same); United
Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); Am. Lebanese
Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022,
1028 (TTAB 2011).
Respondent argues that Petitioner’s CARDITONE dietary supplements are
Ayurvedic products and Respondent’s products are not.31 However, we must consider
the goods as they are described in the registrations at issue. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Octocom Sys. Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability
of an applicant’s mark must be decided on the basis of the identification of goods set
forth in the application regardless of what the record may reveal as to the particular
nature of an applicant’s goods, the particular channels of trade or the class of
purchasers to which the sales of goods are directed.”). See also Paula Payne Prods. v.
Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases
involving the issue of likelihood of confusion must be decided on the basis of the
respective descriptions of goods”). We also do not read limitations into the

31 Respondent’s Brief, p. 6 (59 TTABVUE 11).
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identification of goods. In re i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific
limitation and nothing in the inherent nature of Squirtco’s mark or goods that
restricts the usage of SQUIRT for balloons to promotion of soft drinks. The Board,
thus, improperly read limitations into the registration”); Thor Tech, 90 USPQ2d 1634,
1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into
the registrant’s description of goods.”). Therefore, we must presume that Petitioner’s
dietary supplements and Respondent’s dietary and nutritional supplements include
all types of dietary supplements including Ayurvedic products.
Respondent also argues that the presumptions are rebutted by Petitioner’s own
testimony that the goods are not offered for sale by the same retailers.32 However,
when there is no limitation in a party’s identification of goods, the Board must
presume that the party’s goods move in all channels of trade that would be normal
for such goods, and that they would be purchased by all potential customers. This is
so despite the fact that the evidence reveals that the goods are sold through different
channels of trade. See CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed.
Cir. 1983); Morton-Norwich Prods., Inc. v. N. Siperstein, Inc., 222 USPQ 735, 736
(TTAB 1984); In re Heat Mirror Assoc., 219 USPQ 1015, 1017 (TTAB 1983); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). Moreover, channels of trade change and
either party could at any time decide to distribute their products in multiple or

32 Respondent’s Brief, p. 7 (59 TTABVUE 12).
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different channels of trade. Evans Prods. Co. v. Boise Cascade Corp., 218 USPQ 160,
163 (TTAB 1983).
B. The number and nature of similar marks in use on similar goods.

Respondent introduced one third-party registration for the mark CARDI-RITE
registered for vitamin preparations33 and 70 third-party registrations containing the
term “Cardio” registered from a variety of dietary and nutritional supplements.34
While third-party registrations are not evidence of use under the sixth Du Pont factor,
they may be used to show the sense in which a term is used in ordinary parlance (i.e.,
that a term has a well-recognized meaning). See Juice Generation, Inc. v. GS Enters.
LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015); AMF Inc. v. Am.
Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Peace Love
World Live, LLC, 127 USPQ2d 1400, 1406 (TTAB 2018). The third-party registrations
show that the term “Cardio” has descriptive significance in connection with dietary
and nutritional supplements. This is corroborated by Patricia Riley’s testimony that
her company’s CARDIO TONE nutritional supplements are sold to persons with
heart issues,35 Gunny Sodhi’s testimony that Petitioner’s CARDITONE and
Respondent’s CARDIO TONE are “directly competitive,”36 and the fact that
Respondent disclaimed the exclusive right to use the term “Cardio” in response to the

33 48 TTABVUE 12.
34 48 TTABVUE 67-3857 and 49 TTABVUE.
35 Riley Testimony Decl. ¶5 (50 TTABVUE 6); Riley Discovery Dep., p. 13 (34 TTABVUE
13).
36 Gunny Sodhi Testimony Aff. ¶4 (27 TTABVUE 9).
Cancellation No. 92061544
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requirement by the Examining Attorney on the ground “Cardio” is merely descriptive
of a feature of Respondent’s products.37 Because “Cardio” is merely descriptive when
used in connection with dietary or nutritional supplements and is entitled to only a
narrow scope of protection or exclusivity of use.
The evidence with respect to the term “Cardi,” consisting of one third-party
registration, reflects a far more modest amount of evidence than found convincing in
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 112 1136 (Fed. Cir. 2015) and Juice
Generation wherein “a considerable number of third parties’ use of similar was
shown.” Id. The evidence regarding the weakness of the term “Cardi” is not nearly as
persuasive as that in either Jack Wolfskin or Juice Generation.
Even if we find that the term “Cardi” suggests or describes “Cardiovascular”
effects, none of the 71 third-party registrations introduced by Respondent is as close
to Petitioner’s mark CARDITONE as Respondent’s mark CARDIO TONE. In this
regard, we note that none of the third-party registrations include the word “Tone.”
C. The similarity or dissimilarity of the marks

We turn next to the Du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. Du Pont, 177 USPQ at 567. In comparing
the marks, we are mindful that where, as here, the goods are in part identical, the

37 July 3, 2013 Office Action and January 3, 2014 Response to Office Action in Respondent’s
Application Serial No. 85892193.
Cancellation No. 92061544
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degree of similarity necessary to find likelihood of confusion need not be as great as
where there is a recognizable disparity between the goods. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012);
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB
2007); Schering-Plough HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d 1323,
1325 (TTAB 2007).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs., 101 USPQ2d at 1721. See also Midwestern Pet
Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440
(Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). Inasmuch as the goods at issue are dietary supplements, the
average customer includes consumers with an interest in healthful nutrition.
Cancellation No. 92061544
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We begin our comparison of the marks by noting that the space between the words
“CARDIO” and “TONE” in Respondent’s mark CARDIO TONE that is missing
between the terms “CARDI” and “TONE” in Petitioner’s mark CARDITONE is not
significant. See, e.g., In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1861
(Fed. Cir. 1987) (affirming the Board’s finding that FirsTier is the phonetic equivalent
of “first tier”); Armstrong Mfg. Co. v. Ridge Tool Co., 132 USPQ 158, 56 USPQ 165,
166 (CCPA 1942) (“Vistand” is the equivalent of “vise stand”); Seaguard Corp. v.
Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD
are “essentially identical”); In re Best Western Family Steak House, Inc., 222 USPQ
827, 827 (TTAB 1984) (“there can be little doubt that the marks [BEEFMASTER for
restaurant services and BEEF MASTER for frankfurters and bologna] are practically
identical and indeed applicant has not argued otherwise.”) (Emphasis in the original).
Cf. Minn. Mining & Mfg. Co. v. Addressograph-Multigraph Corp., 155 USPQ 470, 472
(TTAB 1967) (“[i]t is almost too well established to cite cases for the proposition that
an otherwise merely descriptive term is not made any less so by merely omitting
spaces between the words”). Respondent has not provided any reason for us to depart
from established precedent.
In this regard, we note that because Petitioner’s registration for the mark
CARDITONE is in standard character form, the rights reside in the wording and not
in any particular display. Petitioner may depict CARDITONE in any manner,
regardless of the font style, size, or color, and might at any time in the future be
displayed in a manner approaching Respondent’s display (e.g., CardiTone). In re
Cancellation No. 92061544
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Viterra Inc., 101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City Bank Grp., Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011).
The marks are similar in sound and appearance. Both marks begin with CARDI
and end in TONE. The primary difference between Respondent’s mark CARDIO
TONE and Petitioner’s mark CARDITONE is the letter “O” in Respondent’s mark
CARDIO TONE. “As seen and spoken, this middle portion may be missed by many of
the relevant purchasers.” Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB
2004) (ONCASE is similar to ONCONASE); In re Great Lakes Canning, Inc., 227
USPQ 483, 485 (TTAB 1985) (CAYNA is similar to CANA).
As to meaning, we find that the respective marks CARDITONE or CARDIO TONE
connote that each product has something to do with heart health. While each mark
may be suggestive, the marks convey the same basic idea–heart fitness–and, thus,
engender similar commercial impressions. As noted above, Patricia Riley testified
that her company’s CARDIO TONE nutritional supplements are sold to persons with
heart issues,38 and Gunny Sodhi testified that Petitioner’s CARDITONE and
Respondent’s CARDIO TONE are “directly competitive.”39
Considering the similarities between the marks in sound, appearance,
connotation and commercial impression and taking into account the fallibility of
human memory over a period of time, a factor that becomes important if a purchaser
encounters one of these products some weeks or months apart, the marks are similar.

38 Riley Testimony Decl. ¶5 (50 TTABVUE 6); Riley Discovery Dep., p. 13 (34 TTABVUE
13).
39 Gunny Sodhi Testimony Aff. ¶4 (27 TTABVUE 9).
Cancellation No. 92061544
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Respondent argues that Petitioner “has no trademark rights to ‘cardio’ and the
addition of the letter ‘o’ and the space between the words, i.e. CARDITONE vs.
CARDIO TONE, is enough of a difference in a crowded field.”40 We disagree. First,
Petitioner does not claim any rights to the term “Cardio” per se. Petitioner’s mark is
CARDITONE and it is that mark to which it claims rights. In fact, Petitioner’s mark
does not even contain the term “Cardio.” Second, with respect to Respondent’s
addition of the letter “o,” as noted above, it may be missed by a significant segment
of the purchasing public. Slight differences in marks do not normally create dissimilar
marks. See Alfacell v. Anticancer Inc., 71 at 1305 (ONCASE is similar to
ONCONASE); In re Great Lakes Canning, Inc., 227 USPQ at 485 (CAYNA is similar
to CANA). See also U.S. Mineral Prods. Co. v. GAF Corp., 197 USPQ at 306 (“‘AFCO’
and ‘CAFCO,’ which differ only as to the letter ‘C’ in USM’s mark, are substantially
similar in appearance and sound”); In re Bear Brand Hosiery Co., 194 USPQ 444, 445
(TTAB 1977) (“The mark of the applicant, ‘KIKS’ and the cited mark ‘KIKI’ differ only
in the terminal letter of each mark. While differing in sound, the marks are similar
in appearance and have a somewhat similar connotation”). Finally, as noted above,
we find that the space between CARDIO and TONE in Respondent’s mark that is
missing in Petitioner’s mark CARDITONE is not significant. According to the case
law cited above, adding or omitting a space between two words does not change the
meaning or commercial impression engendered by those terms and we see no
compelling reason to find differently in this case.

40 Respondent’s Brief, p. 4 (59 TTABVUE 9).
Cancellation No. 92061544
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In view of the foregoing, we find that the marks CARDIO TONE and CARDITONE
are similar in their entireties in terms of appearance, sound, connotation, and
commercial impression.
D. The nature and extent of any actual confusion and the length of time during
and conditions under which there has been concurrent use without evidence
of actual confusion.41
Patricia Riley testified that Respondent has been using the mark CARDIO TONE
to identify dietary and nutritional supplements since at least as early as 1997,42 and
that she is unaware of any reported instances of confusion.43 The absence of any
reported instances of confusion is meaningful only if the record indicates appreciable
and continuous use by Respondent of its mark for a significant period of time in the
same markets as those served by Petitioner under its mark. Citigroup Inc. v. Capital
City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98
USPQ2d 1253 (Fed. Cir. 2011); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768,
1774 (TTAB 1992). In other words, for the absence of actual confusion to be probative,
there must have been a reasonable opportunity for confusion to have occurred.
Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the

41 The testimony by Gunny Sodhi that Petitioner’s “Customer Care Team” has received
telephone calls from consumers confused as to the source of the CARDIO TONE product is
not entitled to any probative value because it is hearsay (i.e., statements from Petitioner’s
employees, declarants who are unavailable for cross examination, about what customers,
other declarants unavailable for cross examination, are saying). Gunny Sodhi Testimony Aff.
¶31 (27 TTABVUE 18). See Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757, 204
USPQ 697, 701 (CCPA 1980) (testimony by a customer of Georgia-Pacific regarding what his
customers told him is hearsay).
42 Riley Testimony Decl. ¶¶16-17 and 19-20 (50 TTABVUE 8).
43 Id. at ¶67 (50 TTABVUE 20).
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probative value of the absence of actual confusion depends upon there being a
significant opportunity for actual confusion to have occurred); Red Carpet Corp. v.
Johnstown Am. Enter. Inc., 7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya
Co., Inc. v. N. Am. Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“the absence of
actual confusion over a reasonable period of time might well suggest that the
likelihood of confusion is only a remote possibility with little probability of
occurring”).
In its brief, Respondent makes a point of the fact that Petitioner’s CARDITONE
is an Ayurvedic product based on the principles of Ayurvedic medicine while
Respondent’s products have no connection with Ayurveda,44 showing “that there is no
opportunity for consumers to choose between CARDITONE and CARDIO TONE
products.”45 One of Petitioner’s brochures explains Ayurvedic medicine as follows:
Ayurveda, The Science of Life
Practiced for more than 5,000 years, Ayurvedic Medicine is
one of the world’s oldest systems of healing. Meaning,
literally, “The Science of Life”, Ayurvedic treatments
involve many strategies to restore optimal health and
function. These include nutritional therapy, cleansing
treatments, herbal supplements, stress reduction
techniques and exercise.
Ayurveda appeals to a growing number of people today who
are eager to understand the source of illness and take a
more active role in their own health. Like other holistic
medicine systems, Ayurveda considers the whole person in

44 Respondent’s Brief, pp. 3-4 and 6 (59 TTABVUE 8-9 and 11). See also Riley Testimony Decl.
¶¶ 50 and 51 (50 TTABVUE 17) (Respondent has no intention of selling products based on
Ayurveda).
45 Respondent’s Brief, p. 9 (59 TTABVUE 14).
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diagnosis and treatment of disease and is prevention
oriented.46
Patricia Riley testified that Respondent always displays its CARDIO TONE
products on its bottles in close conjunction to its house marks “MDR” and “Medical
Design Research.”
23. As with other [Respondent’s] products, [Respondent]
sells its CARDIO TONE bottles with the words “MDR” and
“Medical Research Design.” This is done so that consumers
know that the products are from [Respondent]. The words
“MDR” and “Medical Design Research” appear just under
the bottle cap, above the word “Cardio Tone.”
24. All of [Respondent’s] CARDIO TONE products sold
since the first sale to the present contained the words
“MDR” to indicate that the products are from [Respondent].
[Respondent] intends to continue to place the words “MDR”
on all CARDIO TONE products in the future.47
In addition, Respondent’s products are primarily sold through Respondent’s website
and “other online retailers.”48
62. … [Respondent] primarily markets to its customers via
www.mdr.com, mail order, brochures, direct response from
customers, over 1000 infomercials and promotional videos
(some but not all of which are available on Youtube [sic]),
internet and television. [Respondent] also sends out
targeted emails to its customers and has advertised on
Facebook and via Google.
63. In the past, [Respondent] advertised in a variety of
print magazines such as People, Newsweek, Rolling Stone,
Prevention, Reader’s Digest, and Men’s Health. However,

46 Shailinder Sodhi Testimony Aff. Exhibit 4 (26 TTABVUE 30).
47 Riley Testimony Decl. ¶¶23 and 24 (50 TTABVUE 9).
48 Id. at ¶62 (50 TTABVUE 19). See Gunny Sodhi Testimony Aff. ¶20 (27 TTABVUE 15)
(witness was only able to find Respondent’s CARDIO TONE at viewvitamins.com which does
not sell Petitioner’s CARDITONE and could not find Respondent’s CARDIO TONE on
Amazon.com).
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[Respondent] no longer advertises much in print
magazines because the market for print magazines has
declined considerably with the growth of the internet.49
Respondent does not sell its products in brick-and-mortar stores.50
Dr. Shailinder Sodhi, Petitioner’s President and founder, testified that Petitioner
first used the mark CARDITONE to identify dietary and nutritional supplements in
the state of Washington in 1990 and expanded beyond Washington in 1993.51
Petitioner sells CARDITONE online on its website at ayush.com, as well as through
online retailers such as Amazon.com and iHerb.com, through brick-and-mortar
health food stores, and through private health care practitioners.52 Gunny Sodhi
testified that he is not aware of any online retailer who sells the products of both
parties.53 Shailinder Sodhi and Gunny Sodhi are not aware of any brick-and-mortar
store or health care practitioner that has sold the products of both parties.54
Petitioner attends a number of trade shows each year to promote its products,
including the CARDITONE® product.
We usually have a table or booth at these shows. Some of
the shows we promote the CARDITONE® product at
include: The Natural Products Expo West; Supply Side

49 Riley Testimony Decl. ¶¶62 and 63 (50 TTABVUE 19).
50 Riley Discovery Dep., p. 24 (34 TTABVUE 14).
51 Shailinder Sodhi Testimony Aff. ¶3 (26 TTABVUE 8).
52 Id. at ¶¶9-11 (26 TTABVUE 10). See Gunny Sodhi Testimony Aff. ¶20 (27 TTABVUE 15)
(sales through vitaminshoppe.com, pureformulas.com, pureprescriptions.com, and others).
53 Gunny Sodhi Testimony Aff. ¶20 (27 TTABVUE 15).
54 Shailinder Sodhi Testimony Aff. ¶¶10-11 (26 TTABVUE 10); Gunny Sodhi Testimony Aff.
¶¶21-22 (27 TTABVUE 16).
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West; AANP; SIO; ANP; ONC; NAMA; OANP; WANP; and
AZNMA.55
Petitioner has also advertised its products in printed publications such as
Naturopathic Doctor News and Review, Vitamin Retailer, Nutrition Industry
Executive Magazine, and Expo West Magazine.56
Although Respondent always uses its mark in close connection with its house
marks “MDR” and “Medical Design Research” and the parties offer their products in
different channels of trade, the products have been sold concurrently to the same
classes of consumers since at least 1997 or for over 20 years.57 Under these
circumstances, we find that the lack of any reported instances of confusion weighs
against finding that there is a likelihood of confusion.
E. Analyzing the factors.
In this case, the lack of any reported instances of confusion, while weighing
against finding a likelihood of confusion, is not so clear cut as to outweigh the other
Du Pont factors. See Citigroup Inc. 98 USPQ2d at 1253 (no likelihood of confusion
because the marks were dissimilar and there were no reported instances of actual
confusion despite the opportunity for confusion to have occurred). Despite the lack of

55 Shailinder Sodhi Testimony Aff. ¶¶12 (26 TTABVUE 10).
56 Gundy Sodhi Testimony Aff. ¶28 (27 TTABVUE 17).
57 Because the description of goods are in part identical, we must presume that the channels
of trade are the same for that Du Pont factor. See the discussion supra. However, in
determining whether there has been a reasonable opportunity for confusion to have occurred,
we must consider the evidence regarding how the goods actually have been sold. Therefore,
we assess the evidence regarding the channels of trade and classes of consumers; otherwise,
we would be make a finding of fact regarding the lack of any reported instances of confusion
based on a presumption rather than reality.
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any reported instances of confusion over the past 20 years, because the marks are
similar, the goods are in part identical and there is a presumption that the goods are
offered in the same channels of trade and are sold to the same classes of consumers,
we find that Respondent’s mark CARDIO TONE for “dietary and nutritional
supplements” is likely to cause confusion with the registered mark CARDITONE for
dietary supplements.

Decision: The petition for cancellation is granted.