Dub Nutrition, LLC

Trademark Trial and Appeal Board

Oct 3, 2012

No. 77752113 (T.T.A.B. Oct. 3, 2012)

Mailed:
October 3, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Dub Nutrition, LLC
________

Serial No. 77752113
_______

Brick G. Power of Durham Jones Pinegar, P.C. for Dub
Nutrition, LLC.

Gina M. Fink, Trademark Examining Attorney, Law Office 109
(Dan Vavonese, Managing Attorney).
_______

Before Seeherman, Kuhlke and Lykos, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Dub Nutrition, LLC has appealed from the final refusal
of the trademark examining attorney to register DUB, in
standard characters, for dietary supplements.1 Registration
has been refused pursuant to Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark so resembles the mark DUB, in standard characters, for

1 Application Serial No. 77752113, filed June 4, 2009, based on
Section 1(b) of the Trademark Act (intent-to-use).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77752113
2
non-alcoholic energy drinks2 that, if used on applicant’s
goods it is likely to cause confusion or mistake or to
deceive.
Applicant and the examining attorney have filed
briefs. We affirm the refusal.
As a preliminary matter, we note that the examining
attorney has objected to the exhibits applicant attached to
its appeal brief. Trademark Rule 2.142(d) provides that
the record in the application should be complete prior to
the filing of an appeal, and there is no question that
applicant did not submit these materials during the
prosecution of its application. However, it is noted that
certain of the materials, namely Exhibits C, D and F, were
referenced in applicant’s March 15, 2011 response to the
first Office action, with applicant indicating the URL for
the materials, as well as a brief description of the
information in the materials. Because the examining
attorney did not advise applicant, at a point when it could
still remedy the situation, that merely providing the web
address for the materials was not sufficient to make the
webpages themselves of record, we consider the examining
attorney to have waived any objection to such materials.
Cf. In re City of Houston, 101 USPQ2d 1534, 1536 (TTAB

2 Registration No. 3791620, issued May 18, 2010.
Ser No. 77752113
3
2012); (the examining attorney’s failure to advise
applicant of the insufficiency of the list of registrations
when it was proffered during examination constituted a
waiver of any objection to consideration of that list);
TBMP § 1208.02 (3d ed. rev. 2012). However, applicant
never referenced Exhibits A, B, E and G, nor made any
attempt to timely make them of record, and therefore we
have not considered them.3
Our determination of the issue of likelihood of
confusion 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 & 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). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks
and the similarities between the goods and/or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie

3 We note that Exhibits A and E were taken from applicant’s
website, and the examining attorney attached certain webpages
from this site to the Office action mailed April 6, 2011;
although these webpages are not identical to those in Exhibits A
and E, there are some similarities, and the webpages attached to
the Office action are of record.

Ser No. 77752113
4
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Applicant’s mark and the mark in the cited
registration, DUB, are identical in appearance and
pronunciation. There is no evidence that the meaning of
DUB would differ because of the different goods with which
it is used. Therefore, the connotation of DUB is the same
for both marks, and both marks convey the identical
commercial impression. This du Pont factor heavily favors
a finding of likelihood of confusion.
Further, DUB appears to be arbitrary as applied to
energy drinks or, for that matter, energy supplements, and
there is no evidence of the use of similar marks by third
parties. The registered mark must therefore be treated as
a strong mark, entitled to a broad scope of protection.
We note applicant’s argument that the manner in which
registrant uses its mark is as a secondary brand, that is
depicted less prominently and below “its well-known MONSTER
branding,” and that it is used only in connection with the
term “edition.” Brief, p. 5. This argument is not
persuasive. Applicant has not appropriately made of record
any evidence in support of this argument and, more
importantly, we must consider the issue of likelihood of
Ser No. 77752113
5
confusion with respect to the mark in the cited
registration, which is DUB per se.
Turning to the du Pont factor of the similarity or
dissimilarity between the goods, we note that, where an
applicant’s mark is identical to the registrant’s mark,
there need be only a viable relationship between the
respective goods in order to find that a likelihood of
confusion exists. In re Opus One Inc., 60 USPQ2d 1812,
1815 (TTAB 2001). In this case, to demonstrate the
relatedness of the goods, the examining attorney has made
of record use-based third-party registrations showing that
numerous entities have registered a single mark for both
dietary supplements and energy drinks, e.g., Registration
Nos. 3835894, 2995742, 3111332, 3628769, 3175365, and
3386436. Third-party registrations which individually
cover a number of different items and which are based on
use in commerce serve to suggest that the listed goods
and/or services are of a type which may emanate from a
single source. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783 (TTAB 1993).
Applicant has attempted to distinguish the goods on
the basis that dietary supplements are healthy and energy
drinks are not. However, the examining attorney has
submitted evidence in which energy drinks are referred to
Ser No. 77752113
6
as being healthy. For example, the review of the Hydrive
energy drink calls it a “health conscious beverage” in
which Acai berries are combined “with a plethora of
b-vitamins and potassium” to make a “healthy energy drink.”
http://energy-drink-ratings.blogspot.com. And the website
AmazonAcaiBerry, www.amazonacaiberry.com, discusses Efusjon
“acai berry healthy energy drinks” in connection with the
marketing of this product on Facebook. Thus, although
“dietary supplements” and “energy drinks” may be
specifically different, the evidence shows that they can
appeal to the same classes of health conscious consumers.
Based on the foregoing, we find that that applicant’s
and the registrant’s identified goods are related.4
Applicant argues that the trade channels for the goods
are different because applicant’s dietary supplements “are
marketed through a direct sales network of independent

4 The examining attorney also submitted webpages from the
website for Medscape Today, www.medscape.com, discussing
Herbalife Diet Supplements, and from the Herbal Vitality website,
www.herbalvitality.info, featuring Herbalife Liftoff energy
drink. However, because it is not clear whether Herbalife sells
a “dietary supplement” or sells an item used for dieting, we have
not relied on this evidence in concluding that the goods are
related. Nor have we relied on the evidence, taken from
applicant’s website, that shows applicant sells a “2 oz. energy
shot.” Although this product may well constitute an “energy
drink,” as that term would be identified, because of applicant’s
insistence that “energy drinks,” in contrast to its own product,
include ingredients, like caffeine, “that are widely believed to
have [a negative] impact on consumer health” and “provide little
or no health benefits,” brief, p. 4, we have not treated it as an
“energy drink.”
Ser No. 77752113
7
distributors—individuals who often work out of their
homes.” Brief, p. 5. However, because applicant’s
identification does not restrict the channels of trade, we
must presume that the goods are sold in all channels of
trade appropriate for dietary supplements, including retail
stores such as supermarkets and pharmacies, where energy
drinks are sold. In re Smith and Mehaffey, 31 USPQ2d 1531,
1532 (TTAB 1994). As previously noted, they can also be
sold to the same classes of consumers.
Applicant asserts that the conditions of purchase
du Pont factor favors it because “people who purchase
dietary supplements usually make careful decisions about
the products they purchase.” Brief, p. 6. First, although
some customers may purchase dietary supplements with care,
dietary supplements are ubiquitous products that include
daily multi-vitamins, which may be purchased by the public
at large simply because they have heard that it is a good
idea to take these vitamins. Thus, we cannot assume that
dietary supplements are generally purchased with care.
Further, even if we were to assume that dietary supplements
are purchased with care, because the trademarks for
applicant’s and the registrant’s goods are identical, even
a careful examination of the trademarks would not result in
a consumer recognizing that the marks represent separate
Ser No. 77752113
8
sources of the goods. And, because the third-party
registrations show that entities have adopted a single mark
for both dietary supplements and energy drinks, even
careful consumers could assume that both types of products
emanate from a single source if sold under identical marks.
We also note applicant’s statement that energy drinks are
often purchased “as an impulse item.” Brief, p. 6. As a
result, there is a likelihood of reverse confusion, because
a consumer who is familiar with applicant’s DUB dietary
supplements might well buy a DUB energy drink without any
thought, merely assuming because of the identical mark that
the goods emanate from the same source.
With respect to the du Pont factor of the nature and
extent of any actual confusion, applicant states that it is
not aware of any confusion between applicant’s dietary
supplements and the registrant’s energy drink. However,
applicant’s application is based on an intention to use the
mark, not actual use, and there is no evidence as to when
applicant may have started using its mark, or the extent of
such use, such that we can ascertain whether there has been
an opportunity for confusion to occur. In any event, an
applicant’s uncorroborated statements of no known instances
of actual confusion are of little evidentiary value. The
lack of evidence of actual confusion carries little weight,
Ser No. 77752113
9
especially in an ex parte context. In re Majestic
Distilling Co., 65 USPQ2d at 1205.
With respect to the remaining du Pont factors
discussed by applicant, there is no evidence that has been
appropriately made of record in support of applicant’s
arguments. To the extent that any of these factors apply,
we treat them as neutral.
In conclusion, after considering all of the relevant
du Pont factors, we find that the Office has met its burden
of proving that applicant’s use of DUB for dietary
supplements is likely to cause confusion with DUB for
energy drinks.
Decision: The refusal of registration is affirmed.