Bluebonnet Nutrition Corp.v.New Vitality

Trademark Trial and Appeal Board

Aug 5, 2013

No. 91201410 (T.T.A.B. Aug. 5, 2013)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Oral Hearing: Mailed: July 24, 2013 August 5, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Bluebonnet Nutrition Corp. v. New Vitality _____ Opposition No. 91201410 to application Serial No. 85236913 filed on February 8, 2011 _____ John S. Egbert, Kevin S. Wilson and Mike Swartz of Egbert Law Offices, PLLC for Bluebonnet Nutrition Corp. Mark B. Harrison, Jacqueline Levasseur Patt, Michael Hall and Meaghan Kent of Venable for New Vitality. _____ Before Zervas, Kuhlke and Greenbaum, Administrative Trademark Judges. Opinion by Kuhlke, Administrative Trademark Judge: Applicant, New Vitality, seeks registration of the mark AGELESS MALE in standard characters (MALE disclaimed) for goods identified in the application as “dietary and nutritional supplements,” in International Class 5 on the Principal Register.1 1 Serial No. 85236913, filed on February 8, 2011, alleging February 7, 2011, as the date of first use and February 8, 2011, as the date of first use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a). Opposition No. 91201410 2 Opposer, Bluebonnet Nutrition Corp., has opposed registration of applicant’s mark on the ground that, as applied to applicant’s goods, the mark so resembles opposer’s previously used and registered marks AGE-LESS, AGE-LESS CHOICE and AGE-LESS SKIN FORMULA for nutritional supplements, as to be likely to cause confusion under 2(d) of the Lanham Act, 15 U.S.C. § 1052(d). By its answer, applicant denied the salient allegations. Applicant’s “affirmative defenses” simply serve to amplify the denials. By operation of the Trademark Rules the pleadings herein and the file of the opposed application are of record. Trademark Rule 2.122, 37 C.F.R. § 2.122. In addition, opposer submitted under notices of reliance: USPTO Trademark Electronic Database (TARR) printouts of its pleaded registrations, which show that the registrations are subsisting and owned by opposer;2 opposer’s discovery requests and applicant’s responses thereto;3 printouts of email communications between opposer’s and applicant’s counsel;4 pages from opposer’s website showing dietary 2 Pleaded registrations may be made of record by submitting “a current printout of information from the electronic database records of the USPTO showing the current status and title of the registration.” Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d). 3 Documents provided in response to requests for production of documents may not be made of record under notice of reliance; however, the response to the request setting out objections and/or indicating whether or not documents exist may be so introduced. Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1217 n.8 (TTAB 2011). 4 This matter is not appropriate for submission under notice of reliance. See Trademark Rule 2.122(e), 37 C.F.R. § 2.122(e). However, inasmuch as applicant has not objected to it, has addressed it, and has submitted its own email in rebuttal we consider this, as well as applicant’s email evidence, to be stipulated into the record. Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5 (TTAB 1989); and Conde Nast Publications Inc. v. Vogue Travel, Inc., 205 USPQ 579, 580 n.5 (TTAB 1979). Opposition No. 91201410 3 and nutritional supplements offered for sale under the AGE-LESS marks; pages from third-party websites showing opposer’s dietary and nutritional supplements offered for sale under opposer’s AGE-LESS marks; and pages from opposer’s website showing store locations at which opposer’s goods may be found. Applicant submitted under notices of reliance: third-party registrations with marks that include the word AGELESS; pages from third-party websites displaying nutritional supplements for sale under marks that contain the word AGELESS; applicant’s discovery requests and opposer’s responses thereto; pages from applicant’s websites showing use of applicant’s mark in connection with its nutritional supplements; and email correspondence between applicant’s and opposer’s counsel. As part of its case-in-chief, opposer relies on its requests for admissions that opposer asserts are deemed admitted inasmuch as applicant did not timely serve their responses. Thus, we must first resolve whether these requests are deemed admitted and, if so, whether applicant may withdraw the admissions. On January 13, 2012, the parties agreed to an extension of time for applicant to respond to opposer’s discovery requests until January 31, 2012.5 On February 3, 2012, opposer sent an email to applicant confirming receipt of applicant’s phone message and rejecting applicant’s request for “an extension of time” (which in fact would have been a reopening of time) to respond to written discovery requests.6 Nearly a month later, on March 1, 2012, opposer sent applicant a letter indicating that they had not 5 Opp. NOR Exh. E, TTABvue 7 p. 26. 6 App. NOR Exh. DD, TTABvue 13 p. 5. Opposition No. 91201410 4 yet received responses to opposer’s interrogatories and requests for production of documents, which were due on January 31, 2012, and opposer requested that they be served by March 9, 2012 without objection in view of their untimeliness.7 No mention was made of the requests for admissions, which under Fed. R. Civ. P. 36(a)(3) would be deemed admitted inasmuch as the responses had not been served by the deadline. Thereafter, applicant served responses to opposer’s discovery requests, including responses to the requests for admissions, on March 8, 2012.8 “In order to avoid admissions resulting from a failure to respond, a responding party may pursue two separate avenues for relief, namely: a party may either (1) move to reopen its time to serve responses to the outstanding admission requests because its failure to timely respond was the result of excusable neglect under Fed. R. Civ. P. 6(b)(1)(B); or (2) the moving party implicitly acknowledges that the responses are late, deemed admitted, and moves to withdraw and amend its admissions pursuant to Fed. R. Civ. P. 36(b). The crucial distinction is that under Fed. R. Civ. P. 6(b)(1)(B), the moving party is seeking to be relieved of the untimeliness of its response, so that the admissions would not be deemed admitted as put.” TBMP § 525. Applicant argues under Rule 6(b), that the Board should not consider the requests deemed admitted and accept the late-filed responses based on excusable neglect. The time for applicant to seek a reopening of its time to serve its responses was February 3, 2012, when opposer rejected its request for an “extension.” 7 Opp. NOR Exh. F, TTABvue 7 p. 29. 8 App. Br. p. 13; Opp. Br. p. 8. Opp. NOR Exh. G, TTABvue 7, pp. 31-54. Opposition No. 91201410 5 Instead, applicant chose not to file a motion with the Board and simply served late responses. Thereafter, when opposer went forward with its case-in-chief, clearly relying on those admissions, as indicated by its notice of reliance, applicant, at that time, did not ask for a reopening of time to have its untimely responses accepted. As a practical matter, if we were to reopen applicant’s time to serve its responses, we would have to reopen opposer’s trial period and possibly the briefing period too. Moreover, applicant has not shown excusable neglect. Applicant simply states that its failure to serve timely responses was the result of “a docketing error,” and as soon as it realized the error three days after the deadline, it requested from opposer “a modest extension.”9 The fact that applicant knew they were overdue and opposer did not agree to a reopening, put the burden on applicant to secure a reopening upon motion to the Board. Instead, applicant continued to delay serving any of its discovery responses until after further request by opposer nearly a month later. Even if the docketing error was sufficient to constitute excusable neglect on February 3, there is no explanation as to why applicant delayed serving responses for another month. In addition, applicant argues that “there would be extreme prejudice to applicant if the Requests for Admissions are deemed admitted, but no real prejudice to Opposer to have the responses to those Requests stand.”10 While it certainly does not help applicant’s case and to that extent is prejudicial to applicant, it would be prejudicial to opposer to grant such a request at this time after opposer 9 App. Br. pp. 13-14. 10 App. Br. p. 14. Opposition No. 91201410 6 has expressly relied on those admissions in its case-in-chief. We, therefore, deny applicant’s request for a reopening and the requests are deemed admitted. Further, to the extent applicant’s request in its brief could be construed as a motion to withdraw the admissions and accept its late response under Fed. R. Civ. P. 36(b), we do not grant such a motion. Withdrawal of an admission may be permitted “if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” Id. In this case, applicant knew its responses were not filed within the time period. In addition, applicant was put on notice in opposer’s notice of reliance that opposer would be relying on the admissions as part of its case-in-chief. At no time did applicant file a motion to withdraw the admissions. While it is preferable to rule on the merits of a case, to withdraw the admissions at the briefing stage would clearly prejudice the opposer. In view thereof, we deny the motion to withdraw the admissions. We add, however, that the admissions are also supported by the record, and their absence would not change the result. In addition, opposer objects to applicant’s evidence of third-party use (the third-party registrations and websites) because they may not be considered for the truth of the matter asserted and this evidence only serves to show “that the public may have been exposed to” the term AGELESS in connection with third-parties.11 Applicant responds that it has submitted this evidence “only for what the 11 Opp. Br. p. 7 quoting Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USP2d 1066, 1072 (TTAB 2011). Opposition No. 91201410 7 documents show in their face: that the public has been exposed to a significant number of similar marks in use on similar goods.”12 As applicant explains, such evidence may be used to show “that the consuming public is exposed to third-party use of marks incorporating the term ‘Ageless’ or ‘Age-Less’ on similar goods in the same channels and that the term is relatively weak and entitled to only a narrow scope of protection.”13 Opposer’s objection is overruled. STANDING, PRIORITY AND LIKELIHOOD OF CONFUSION The pleaded registrations made of record, which are in full force and effect and are owned by opposer, are summarized as follows: Registration No. 3846551 for the mark AGE-LESS in standard characters for “nutritional supplements” in International Class 5, filed on December 3, 2009, issued on September 7, 2010; Registration No. 3703193 for the mark AGE-LESS CHOICE in standard characters for “nutritional supplements” in International Class 5, filed on October 3, 2008, issued on October 27, 2009; and Registration No. 3021311 for the mark AGE-LESS SKIN FORMULA in typed form “SKIN FORMULA” disclaimed, for “nutritional supplements,” in International Class 5, Sections 8 and 15 combined declaration accepted and acknowledged. Because opposer has made the pleaded registrations summarized above properly of record, opposer has established its standing to oppose registration of applicant’s mark and its priority is not in issue.14 See King Candy Co., Inc. v. 12 App. Br. p. 11. 13 App. Br. p. 11. 14 Applicant’s admissions on the element of priority are superfluous. Opposition No. 91201410 8 Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Applicant does not dispute opposer’s priority.15 Our likelihood of confusion determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors set forth in In re E. I. du Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). 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 (CCPA 1976). Because opposer’s marks with additional wording arguably contain additional points of difference with applicant’s mark, we confine our analysis to the issue of likelihood of confusion between applicant’s mark and opposer’s mark AGE-LESS in Registration No. 3846551. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). We turn first to a consideration of the goods, channels of trade and class of purchasers. We must make our determinations under these factors based on the goods as they are recited in the registration and application. See In re Elbaum, 211 USPQ 639 (TTAB 1981). Opposer’s “nutritional supplements” listed in its registration are identical to applicant’s “nutritional supplements.” Considering the channels of trade and classes of purchasers, because the goods are identical and there are no limitations 15 App. Br. p. 18. Opposition No. 91201410 9 as to channels of trade or classes of purchasers in either the application or opposer’s registration, we must presume that applicant’s and opposer’s goods will be sold in the same channels of trade and will be bought by the same classes of purchasers.16 In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). See also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) and In re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994). Applicant’s arguments regarding the differences in the actual goods and channels of trade are not persuasive inasmuch as we must make our determination on the goods as identified in the application and registration, neither of which is limited to any particular subset of nutritional supplements; as such, both the application and registration encompass all types of nutritional supplements. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). Moreover, as seen in opposer’s exhibits, opposer’s actual goods encompass nutritional supplements formulated specifically for men, applicant’s target market.17 In view of the above, the du Pont factors of the similarity of the goods, the channels of trade and classes of purchasers favor a finding of likelihood of confusion. With regard to the conditions of sale, again, because we are bound by the description of goods in the application and registration and because the descriptions 16 Applicant’s admissions on these factors are superfluous given the legally identical identifications of goods. 17 Opp. NOR Exh. J, TTABvue 9 p. 13 (www.nourishingfoods.com “Bluebonnet Ageless Choice for Men 50+ 90 Caplets”). Opposition No. 91201410 10 of goods are not restricted as to price, the goods at issue must include inexpensive as well as more expensive nutritional supplements. As a general proposition, inexpensive goods may be purchased with less care, which increases the likelihood of confusion. Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care”) (citations omitted). We find this factor also favors opposer. Opposer also argues that its mark is well known, however the evidence of record is not sufficient to support such a finding. Opposer states in its brief that it has “used” the mark for eight years and its goods are sold at hundreds of locations, and on various third-party websites.18 However, there is no testimony as to opposer’s length or manner of use.19 The pages from opposer’s and third-party websites, as opposer so strenuously argued in connection with applicant’s evidence, may not be taken for the truth of the matter asserted. While they do show opposer’s mark used in connection with various nutritional supplements and general 18 Opp. Br. p. 15. Opposer relies on its registrations to establish first use and length of use, but the allegations of first use dates in a registration are not evidence on behalf of a registrant and must be established by competent evidence. Trademark Rule 2.122(b). 19 Opposer’s dates of first use and that “its products are offered for sale in stores and on the internet” are established by its responses to applicant’s interrogatories; however, these bare statements are not sufficient to establish that opposer’s marks are well known. App. NOR Exh. W, TTABvue 11 pp. 25-26. Opposition No. 91201410 11 consumer exposure to them, there is no evidence as to how often and by how many potential purchasers these pages have been viewed.20 We now consider the similarity or dissimilarity of applicant’s mark AGELESS MALE and opposer’s AGE-LESS mark when compared in their entireties in terms of appearance, sound, connotation and commercial impression, keeping in mind that “when marks would appear on virtually identical goods or services, the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992). By the deemed admissions, applicant admits that (1) the marks are similar in appearance,21 (2) AGELESS is the dominant portion of applicant’s mark,22 (3) the dominant portion of applicant’s mark is identical to the dominant portion of opposer’s marks,23 (4) the dominant portion of applicant’s mark is identical to the dominant portion of opposer’s marks, in the mind of consumers,24 and (5) applicant’s mark evokes a commercial impression similar to that of opposer’s marks.25 20 We note in its responses to applicant’s interrogatories, opposer refused to answer inquiries as to sales and advertising figures of its goods under the AGE-LESS marks. App. NOR Exh. W, TTABvue 11 pp. 20-22. 21 Req. No. 12. 22 Req. No. 16. 23 Req. No. 17. 24 Req. No. 18. 25 Req. No. 21. As to Request No. 13 “that consumers are likely to be confused based on the similarities between Applicant’s and Opposer’s Marks” and Request No. 22 “that there is a likelihood of confusion between applicant’s mark and opposer’s marks” such requests Opposition No. 91201410 12 The record also supports these admissions. There can be no question that the disclaimed word MALE in applicant’s mark is merely descriptive of applicant’s goods and that descriptive matter may have less significance in determining likely confusion. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000), quoting, In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1983) (“Regarding descriptive terms, this court has noted that the descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion”); and In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). Certainly, the marks are similar in appearance in view of the fact that the first word in applicant’s mark comprises the entirety of opposer’s mark, only differing by opposer’s use of a hyphen. Given the overall similarities in the appearance and sound of the marks, the inclusion of a hyphen in opposer’s mark is insufficient to distinguish the marks. See In re Kent- Gamebore Corp., 59 USPQ2d 1373, 1374 (TTAB 2001) (IMPACT and HI-IMPACT marks look and sound alike due to shared word IMPACT, despite the additional prefix HI being physically connected by a hyphen to the dominant term IMPACT). As to connotation, opposer argues that the term “ageless” in both marks conveys the idea “that the consumer will look and feel younger, essentially becoming ‘ageless,’” and while applicant’s mark limits it to males, opposer’s mark impinge on the ultimate determination of likelihood of confusion, which is a question of law and as such cannot be “admitted.” Opposition No. 91201410 13 encompasses males.26 Applicant, however, argues that the connotation is different based on the hyphen in opposer’s marks. Specifically, applicant argues: Age-less (with hyphen) gives the impression of slowing down the aging process, or to age less. Whereas ageless (no hyphen) means that a persons’ age cannot be defined, that they appear not to grow old or are timeless. These provide slightly different commercial impressions.27 In terms of connotation, when the mark is heard there is no perceptible difference. Moreover, we find that even when seen applicant’s mark would retain a similar meaning to opposer’s mark. While it is possible opposer’s mark could evoke that slightly varied connotation, it is just as likely that consumers would perceive the connotations of the respective marks as exactly the same. In any event, the meanings “to age less” and “to be timeless” are similar. Finally, applicant’s argument that opposer uses its mark with its house mark is misplaced inasmuch as we must consider the mark as registered without the presence of the house mark. Similarly, applicant’s arguments regarding actual use of the marks in terms of “colors, fonts, sizing, and placement” are not relevant given that opposer’s mark is registered in standard characters and applicant seeks registration in standard characters. Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); and Cunningham v. Laser Golf Corp., 55 USPQ2d at 1847. 26 Opp. Br. pp. 11-12. 27 App. Br. p. 21. Opposition No. 91201410 14 On balance, we find the similarities outweigh the dissimilarities and that applicant’s mark AGE-LESS MALE would be perceived as a variation on opposer’s AGE-LESS mark. The question that remains is the scope of protection to be accorded the term AGE-LESS or AGELESS.28 Applicant argues that it is a weak term in this field and small variations between the marks are sufficient for potential purchasers to distinguish source. A mark may be shown to be weak based on extensive third- party use of a particular term (Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005)) or based on the number of third-party registrations serving to show that it has a suggestive or descriptive meaning in that field. Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976) (third-party registrations are similar to dictionaries showing how language is generally used); and In re Hartz Hotel Servs., Inc., 102 USPQ2d 1150, 1153-54 (TTAB 2012) (third-party registrations relevant to show that a mark or a portion of a mark is descriptive, suggestive, or so commonly used that the public will look to other elements to distinguish source). In support of this position, applicant has submitted seven third-party use-based registrations for nutritional or dietary supplements and pages from websites displaying use of the marks in these third-party registrations, 28 We do not consider the deemed admission in Request No. 20 that applicant “is not aware of any evidence supporting applicant’s affirmative defenses” to foreclose consideration of the evidence of record regarding third-party use and registration of the term AGELESS in making our determination as to the scope to be accorded opposer’s mark. Opposition No. 91201410 15 and twelve other third-party “common law uses” of the term AGELESS in connection with nutritional products over the Internet.29 Below is a table summarizing the third-party registrations. Registration No. Mark 3721932 AGELESS FOREVER 2954980 AGELESS BEAUTY 29390431 AGELESS ENERGY 3200413 AGELESS FOUNDATION LABORATORIES 2744899 AGELESS WONDERS 3405324 AN AGELESS TOMORROW 4183813 AGE-LESS MEDICINE and design Below are a few examples from third-party websites. 29 App. NOR Exhs. A-U, TTABvue 14 pp. 11-197. We do not consider the third-party application which has no probative value on this point, Nike Inc. v. WNBA Enterprises LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007), or the third-party registration for different goods, namely, a medicated skin care preparation. Opposition No. 91201410 16 Opposition No. 91201410 17 Opposition No. 91201410 18 Opposition No. 91201410 19 The third-party websites on their face “show that the public may have been exposed to those internet websites and therefore may be aware of the advertisements contained therein.” Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011). We recognize, also, that the term “Ageless” is Opposition No. 91201410 20 suggestive of supplements that promote maintaining a youthful condition.30 With regard to the third-party registrations and webpages, we note that several of the third-party registered and common law marks include wording that is arbitrary and more distinct from opposer’s mark AGE-LESS than applicant’s mark AGELESS MALE, which simply adds a term to indicate the targeted consumer. See, e.g., AGELESS FOREVER, AGELESS ENERGY, AGELESS ESSENTIALS, AGELESS WONDERS and AN AGELESS TOMORROW. The evidence, taken in conjunction with the suggestive nature of the term, is sufficient, however, to establish that the term AGELESS is not entitled to a wide scope of protection. See Embarcadero Technologies Inc. v. RStudio Inc., 105 USPQ2d 1825, 1836 (TTAB 2013) (scope of protection narrowed where opposer acknowledged that STUDIO is used in the software industry to suggest a feature and the record included pages from 50 different third-party websites). However, this record does not establish that opposer’s AGE-LESS mark is so weak that consumers are conditioned to distinguish among various AGELESS marks, even when used on identical goods with only the term MALE to distinguish the marks. Applicant’s reliance on Safer Inc. v. OMS Investments, Inc., 94 USPQ2d 1031 (TTAB 2010) and Citigroup Inc., 98 USPQ2d 1253 is misplaced inasmuch as the common element in those cases was generic or highly diluted and the distinguishing 30 We take judicial notice of the definition for “ageless” as “not aging or appearing to age and lasting forever.” Random House Dictionary (2013) retrieved from www.dictionary.com In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). See also App. NOR Exhs. A-F, TTABvue 14 pp. 11-68 (third-party registrations). Opposition No. 91201410 21 elements were at most suggestive. Here, the distinguishing element “male” is at least merely descriptive, whereas the common element AGELESS, with or without the hyphen, is the dominant, albeit somewhat suggestive, element in the parties’ respective marks. We further note in Citigroup Inc., the record included, inter alia, web pages from 40 different entities rendering banking services that included the term “City Bank,” web maps indicating the proximity of some of those banks to opposer’s Citibanks, and testimony from the officers of four third-party “City Banks.” In addition, in Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1356-57 (Fed. Cir. 2004) the common term Ritz took on a very different connotation when combined with THE and KIDS. Here, although upon seeing the marks, the hyphen may evoke a secondary meaning in opposer’s mark, the common connotation is not lost. Even according opposer’s mark a narrow scope of protection, it is not so narrow to preclude a finding of likely confusion given the similarity of the marks and the identical goods, as identified. King Candy Co. v. Eunice King’s Kitchen, Inc., 182 USPQ at 109. We also find this case distinguishable from Hartz Hotel Services Inc., 102 USPQ2d 1150, where the Board found that because of the highly suggestive nature of the term GRAND HOTEL and the third-party registrations, “the addition of a geographic location has been sufficient for the Patent and Trademark Office to view these marks as being sufficiently different from the cited registrant’s mark, and from each other, such as not to cause confusion.” Id. at 1153. Here, the term AGELESS is not as conceptually weak or widely used as the laudatory term GRAND and the third-party registrations have Opposition No. 91201410 22 additional matter that is different from simply narrowing the product’s use to males. Similarly, in Plus Products v. Natural Organics, Inc., 204 USPQ 773 (TTAB 1979) (PLUS and NATURE’S PLUS), the additional word in the applicant’s mark was not generic or merely descriptive, unlike the term “male” in the present case, and the combination created a very different commercial impression, focusing the consumer on the first word in applicant’s NATURE’S PLUS mark. Finally, applicant argues that the absence of examples of actual confusion in the record should weigh in its favor. However, there is no evidence in the record upon which to determine whether there has been a meaningful opportunity for confusion to occur. The absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by applicant of its mark for a significant period of time in the same markets as those served by opposer under its marks. Citigroup Inc. v. Capital City Bank Group, Inc., 94 USPQ2d 1645, 1660, (TTAB 2010) aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011). In view thereof this factor is neutral. In conclusion, because the goods are legally identical, the channels of trade and classes of consumers overlap, and the marks are similar, confusion is likely between opposer’s mark AGE-LESS and applicant’s mark AGELESS MALE. To the extent we have doubt as to whether there is a likelihood of confusion, we resolve it in favor of opposer, the prior registrant. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1691 (Fed. Cir. 1993). Decision: The opposition is sustained.