EA Investments Limited

Trademark Trial and Appeal Board

Aug 3, 2018

No. 87563162 (T.T.A.B. Aug. 3, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: August 3, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re EA Investments Limited
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Serial No. 87563162
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EA Investments Limited, pro se.
Colleen M. Dombrow, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
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Before Mermelstein, Lykos, and Shaw,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
EA Investments Limited (“Applicant”) seeks registration on the Principal Register
of the mark BETTERME, in standard characters, for “Providing information on
maintaining a healthy lifestyle,” in International Class 44.1
Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used in connection with the
identified services, so resembles the mark BETTERME, also in standard characters,

1 Application Serial No. 87563162, filed on August 10, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming a date of first use anywhere and in commerce
of May 24, 2017.
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for “Nutritional supplements; Nutritional supplements in the form of capsules; [and]
Dietary and nutritional supplements,” in International Class 5, as to be likely to
cause confusion, mistake or deception.2
When the refusal was made final, Applicant appealed. We affirm the refusal to
register.
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the goods and the similarities between the marks. 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.”).
A. The similarity or dissimilarity of the marks in their entireties
We begin with the first du Pont factor and consider the marks, comparing them
for similarities and dissimilarities in appearance, sound, connotation and commercial
impression. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Applicant’s mark,
BETTERME, in standard characters, is identical in all respects to Registrant’s mark,

2 Registration No. 5049269, issued September 27, 2016.
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BETTERME, also in standard characters. This du Pont factor heavily favors a finding
of likelihood of confusion.
B. Similarity of the goods and services, trade channels, and classes of purchasers
We next consider the similarity of Registrant’s goods and Applicant’s services,
keeping in mind that the goods and services of the parties need not be identical or
even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am.
Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). The
respective goods and services need only be “related in some manner and/or if the
circumstances surrounding their marketing [be] such that they could give rise to the
mistaken belief that [they] emanate from the same source.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). When
considering the similarity of the goods and services, we note that with identical
marks, as here, the goods and services need not be as similar for us to find a likelihood
of confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Registrant’s goods are dietary and nutritional supplements. Applicant’s services
are “Providing information on maintaining a healthy lifestyle.” At the outset, we note
that the respective goods and services are intrinsically related because Applicant’s
information services relating to healthy lifestyles are broad enough to encompass the
provision of information on dietary and nutritional supplements, including those of
Registrant.
The Examining Attorney argues that “the same entity commonly
manufactures/produces/provides the relevant goods [and] services and markets the
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goods [and] services under the same mark.”3 To support the refusal, the Examining
Attorney introduced nineteen copies of third-party registrations that serve to suggest
dietary and nutritional supplements are offered along with the provision of healthy
lifestyle information, all under the same mark. The following examples are
representative:4
• Reg. No. 4568558 for the mark DUKAN DIET for, inter alia, “dietary and
nutritional supplements,” in International Class 5, and “Providing information
in the field of medicine, diet programs, nutrition, weight loss, beauty, wellness,
and lifestyle,” in International Class 44;
• Reg. No. 4632222 for the mark THINWORKS for, inter alia, “dietary and
nutritional supplements,” in International Class 5, and “Providing a website
featuring information and advice in the fields of diet, weight loss, diet planning
and lifestyle wellness,” in International Class 44;
• Reg. No. 4926427 for the mark FT and design for, inter alia, “dietary and
nutritional supplements,” in International Class 5, and “Providing information
on maintaining a healthy lifestyle and losing weight,” in International Class
44;
• Reg. No. 3774201 for the mark ANCIENT WISDOM FOR MODERN WOMEN
for, inter alia, “dietary and nutritional supplements,” in International Class 5,
and “Providing information on maintaining a healthy lifestyle and losing
weight,” in International Class 44;
• Reg. No. 4205761 for the mark 28IN28 for, inter alia, “dietary and nutritional
supplements used for weight loss,” in International Class 5, and “Providing
information on maintaining a healthy lifestyle and losing weight,” in
International Class 44;
• Reg. No. 4274971 for the mark MEDITHIN for, inter alia, “nutritional
supplements,” in International Class 5, and “Providing information on
maintaining a healthy lifestyle and losing weight,” in International Class 44;
• Reg. No. 4573715 for the mark VIDA MD for, inter alia, “dietary and
nutritional supplements,” in International Class 5 and “Providing information
on maintaining a healthy lifestyle and losing weight,” in International Class
44; and
• Reg. No. 4628540 for the mark SUPERHUMAN for, inter alia, “dietary and
nutritional supplements,” in International Class 5, and “Providing information

3 Examining Attorney’s Br., p. 6, 7 TTABVUE 6.
4 Office Actions of November 14, 2017, pp. 4-38, and December 14, 2017, pp. 4-27.
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on maintaining a healthy lifestyle and losing weight,” in International Class
44.
Although such third-party registrations are not evidence that the registered
marks are in use or that the public is familiar with them, they nonetheless have
probative value to the extent they are based on use in commerce and serve to suggest
that the goods and services identified are of a kind which may emanate from a single
source under a single mark. See In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203
(TTAB 2009) and In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993).
The Examining Attorney also introduced excerpts from third-party websites
which offer both Registrant’s goods and Applicant’s services under the same mark.
The excerpts from the following representative websites establish that Registrant’s
dietary and nutritional supplements are related to Applicant’s provision of
information on maintaining a healthy lifestyle:
• Slimgenics.com;5
• Goop.com;6
• Thehollywoodtrainer.com;7
• Jillianmichaels.com;8
• Lifetime.life;9 and
• Theonefitness.com.10

5 Office Action of November 14, 2017, pp. 41-42.
6 Office Action of December 14, 2017, pp. 29-42.
7 Id. at 43-53.
8 Id. at 54-63.
9 Id. at 64-72.
10 Id. at 73.
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Applicant argues that the difference in Registrant’s goods and Applicant’s services
avoids a likelihood of confusion because the respective purchasers and channels of
trade are different:
The supposition that “[t]he Applicant’s goods and services
are related to the registrant’s goods because these types of
goods and services travel through the same channels of
trade to the same classes of purchasers” is not true. The
matter is that Applicant’s channel of trade is Internet
(online market) and [Opposer’s] is offline market. . . .
Therefore, market channels cannot overlap.11
Applicant’s argument is unpersuasive. Considering the channels of trade and classes
of purchasers, because the goods and services are related and contain no limitations,
it is presumed that they move in all channels of trade normal for those goods and
services, and that they are available to all classes of purchasers, including health-
conscious consumers seeking dietary and nutritional supplements along with
information on maintaining a healthy lifestyle. See Stone Lion Capital Partners, LP
v. Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). See also
Coach Servs., 101 USPQ2d at 1723 (absent limitation “goods [and services] are
presumed to travel in all normal channels . . . for the relevant goods [and services].”).
In light of the evidence of third-party registrations and websites which demonstrate
that the goods and services identified in both the registration and application often
emanate from the same source, we find the channels of trade or classes of purchasers
to be the same or similar. See In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012).

11 Applicant’s Br., pp. 2-3, 5 TTABVUE 2-3.
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Accordingly, we find the Examining Attorney’s evidence establishes that
Applicant’s services are related to Registrant’s goods, that the respective goods and
services travel in the same trade channels, and they are likely to be purchased by the
same consumers. See In re Albert Trostel, 29 USPQ2d at 1785-86.
The du Pont factors relating to the similarity of the goods and services, channels
of trade, and classes of purchasers favor a finding of likelihood of confusion.
C. Balancing the Factors
We have carefully considered all of the evidence and arguments of record relevant
to the pertinent du Pont likelihood of confusion factors. Given the similarity of the
marks, the relatedness of the goods and services and their channels of trade and
classes of purchasers, we find that the Office has met its burden in showing a
likelihood of confusion between Applicant’s mark and the cited mark.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.