Equivalent Pharmaceutical Industries Corporation

Trademark Trial and Appeal Board

Sep 18, 2020

88134289 (T.T.A.B. Sep. 18, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: September 18, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Equivalent Pharmaceutical Industries Corporation
_____

Serial No. 88134289
_____

Adam E. Schwartz of Schwartz Intellectual Property Law PLLC,
for Equivalent Pharmaceutical Industries Corporation.
Saima Makhdoom, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Taylor, Wellington and Shaw,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Equivalent Pharmaceutical Industries Corporation (“Applicant”) seeks
registration on the Principal Register of the standard character mark H2Q for, as
amended, “Nutritional supplements, namely, water-soluble coenzyme Q10
supplements” in International Class 5.1

1 Application Serial No. 88134289 was filed on September 27, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
in commerce since at least as early as 2017.
Serial No. 88134289
- 2 -
The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), because Applicant’s mark, when used in
connection with the identified goods, so resembles the mark in Registration No.
4060043, H2G, as stylized below:

for “Nutritional supplements for supporting connective tissue, vascular function,
sharpness of mind, and the immune system; Pharmaceutical preparations for the
treatment of sexual dysfunction in females; Vitamin D preparations” in International
Class 5,2 as to be likely to cause confusion, to cause mistake or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Applicant submitted 167 pages of evidence as exhibits to its appeal brief.3 To the

2 Issued November 22, 2011; Section 8 Affidavit accepted, Section 15 Affidavit acknowledged.
The registration includes the following description: “The mark consists of The stylized letter
‘H’ followed by the stylized number ‘2’ followed by the stylized letter ‘G’, where the letter ‘G’
is slightly rotated on its side, where the number ‘2’ is slightly lower than the letters ‘H’ and
‘G’, where the ends of the number ‘2’ slightly extend into the letters ‘H’ and ‘G’.” Color is not
claimed as a feature of the mark.
3 TTABVUE 25-192. The TTABVUE and Trademark Status and Document Retrieval
(“TSDR”) citations refer to the docket and electronic file database for the involved application.
Serial No. 88134289
- 3 -
extent any of the evidence submitted with Applicant ’s appeal brief was not previously
submitted during prosecution it is untimely and will not be considered. See
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); TBMP § 1203.02(e) and § 1207.01
(2020) and authorities cited therein.
If the evidence Applicant submitted with its appeal brief is duplicative of evidence
previously submitted during prosecution, the Board discourages this practice. In re
SL&E Training Stable Inc., 88 USPQ2d 1216, 1220 n.9 (TTAB 2008) (attaching as
exhibits to brief material already of record requires Board to determine whether
attachments had been properly made of record and adds to the bulk of the file); ITC
Entm’t Grp. Ltd. v. Nintendo of Am. Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998)
(submission of duplicative papers is a waste of time and resources, and is a burden
on the Board). Applicant can simply cite to the record evidence it intends to rely upon
for statements and arguments made in its brief.
II. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177

All citations to documents contained in the TSDR database are to the downloadable .pdf
versions of the documents in the USPTO TSDR Case Viewer.
Serial No. 88134289
- 4 -
USPQ 563, 567 (CCPA 1973). 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 (CCPA 1976). We discuss below these and other relevant factors. See In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board
considers each DuPont factor for which there is evidence and argument).
III. Discussion
A. Similarity of the Goods and Trade Channels
We first consider the DuPont factors involving the relatedness of the goods and
the channels of trade. In making our determination regarding the relatedness of the
goods, we must look to the goods as identified in the application and the cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput.
Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni
Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Where the goods in an application or cited registration are broadly described, such
that there are no restrictions as to trade channels and purchasers, it is presumed that
the recitation of goods encompass not only all goods of the nature and type described
therein, but that the identified goods are provided in all channels of trade which
would be normal therefor, and that they would be purchased by all potential
customers thereof. See, e.g., In re Elbaum, 211 USPQ 639 (TTAB 1981).
Serial No. 88134289
- 5 -
The record shows that Coenzyme Q10 supplements are claimed to support
vascular function and immune health. For example, the NATURE’S BOUNTY
website (https://www.naturesbount.com) states that “Coenzyme Q10, also known as
CoQ-10, provides powerful antioxidant and cardiovascular support,”4 while the
Health Total website (https://www.health-total.com) explains that “CoQ10 is needed
for the basic functioning of the cell as well as for our immune system. It is distributed
in the membranes of the cells and possibly even serves as a membrane oxidant.”5 We
accordingly find that Registrant’s broadly worded “nutritional supplements for
supporting connective tissue, vascular function, sharpness of mind, and the immune
system” encompass Applicant’s more narrowly identified “nutritional supplements,
namely, water-soluble coenzyme Q10 supplements.” In re Hughes Furniture Indus.,
Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (broadly worded identifications
necessarily encompasses narrowly worded ones). Thus, for purposes of our likelihood
of confusion analysis, we find these goods to be legally identical. Indeed, Applicant,
in its reply brief at footnote 1, states: “The Examiner’s analysis of the similarities
between Applicant’s goods and those covered by the cited registration is unnecessary
as Applicant does not argue that these goods are unrelated.”6
Moreover, given the legal identity of the goods, we must presume that they would
be offered in the same trade channels for such goods and to the same classes of

4 July 30, 2020 Final Office Action, TSDR 9. Full website URLs provided at the citation.
5 Id. at TSDR 18.
6 10 TTABVUE 2.
Serial No. 88134289
- 6 -
purchasers. In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA
1968); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst.,
101 USPQ2d 1022, 1028 (TTAB 2011). 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 and classes of consumers, the Board was entitled to rely on this
legal presumption in determining likelihood of confusion). We accordingly find the
channels of trade and the classes of consumers to be the same.
The DuPont factors concerning the similarity of the marks, trade channels and
classes of consumers favor a finding of likelihood of confusion.
B. Comparison of the Marks
1. Strength of the Cited Mark
We consider the strength of the cited registered mark, and the extent to which
that strength may be attenuated by “[t]he number and nature of similar marks in use
on similar … goods.” DuPont, 177 USPQ at 567. “A mark’s strength is measured both
by its conceptual strength (distinctiveness) and its marketplace [or commercial]
strength (secondary meaning).” In re Chippendales USA, Inc., 622 F.3d 1346, 96
USPQ2d 1681, 1686 (Fed. Cir. 2010). For likelihood of confusion purposes, a mark’s
strength “varies along a spectrum from very strong to very weak.” Joseph Phelps
Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734
(Fed. Cir. 2017) (“likelihood of confusion [strength] … ‘varies along a spectrum from
very strong to very weak.’”) (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)
Serial No. 88134289
- 7 -
(quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir.
2003)).
Applicant maintains that “the element ‘H2’ is weak as a result of a) the litany of
‘H2’ composite marks that coexist on the Federal Register, and b) the suggestive
nature of ‘H2’ in the context of the listed goods,” and that “[c]onsumers who shop for
supplements and related goods online are confronted with a high volume of common-
law marks that begin or end with “H2,” particularly arguing that:
A litany of marks featuring “H2” are currently coexisting
on the Federal Register. By virtue of the sheer number of
these “H2”-formative marks (with different respective
owners) in the nutritional and dietary supplement industry
that the USPTO has permitted to register, it is clear that
the USPTO has adopted the position that consumers are
capable of distinguishing between marks sharing the
element “H2” for supplements and related goods.
Moreover, as marks inclusive of an “H2” prefix are
commonly registered for goods in the nutritional and
dietary supplement space, the breadth of protection that
should be afforded to the Cited Registration is quite narrow
and the differences in sight, sound, meaning and
commercial impression between the applied-for Mark and
Cited Registration serve to distinguish the marks at issue
such that confusion is unlikely.
***
[C]onsumers of supplements are likely to interpret “H2” as
a reference to water and/or hydrogen. H2O is the chemical
formula of water. … In the context of nutritional
supplements, the term H2 indicates water or hydrogen (the
primary component of water) [internal citations omitted].
***
Since the term “H2” is an intentional nod to H2O, it is
highly suggestive if not descriptive of water related goods.
As such, “H2” is entitled to less protection than a coined or
arbitrary term and should be discounted when considering
Serial No. 88134289
- 8 -
the similarities and dissimilarities between the marks at
issue.
Applicant’s brief, pp. 5, 9 and 12.7
In support of its argument that the “H2” portion of Registrant’s mark is entitled
to a narrow breadth of protection, Applicant made of record the following examples
of third-party uses of H2-formative marks from the Internet websites of
www.amazon.com, weedrepublic.com, www.nhc.com, www.ebay.com,
www.iherb.com, https://store.drhyman.com, https://dokodemo.world,
https://alkaway.com, https://trusii.com, and https://boom4energy.com, all for use in
connection with dietary and/or nutritional supplements used to infuse water with
molecular hydrogen:8
 ULTRA H2
 H2 REVIVE
 H2 ELITE
 PRIMO H2
 CORAL CELL ENERGY H2
 H2 ABSORB
 SUPER H2
 I ♥ H2
 H2 NOW
 H2 BOOM
“Evidence of third-party use of similar marks on similar goods is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.” In
re FabFitFun, 127 USPQ2d 1670, 1674 (TTAB 2018), (quoting Palm Bay Imps., 73
USPQ2d at 1693) (emphasis added). “Internet printouts, such as those offered by

7 7 TTABVUE; TSDR 6, 10 and 13.
8 January 29, 2020 Request for Reconsideration; TSDR 62-101.
Serial No. 88134289
- 9 -
Applicant, ‘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.’” Id. (quoting Rocket Trademarks Pty Ltd v. Phard S.p.A., 98 USPQ2d 1066,
1072 (TTAB 2011)). While Applicant has not presented specific evidence concerning
the extent, exposure, or impact of these uses, “[i]n determining the degree of
weakness, if any, of the shared term [H2], we must ‘adequately account for the
apparent force of [third-party use] evidence,’ regardless of whether ‘specifics’
pertaining to the extent and impact of such use[s] have been proven.” In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d, 777 Fed. Appx. 516 (Fed.
Cir. 2019) (mem), (quoting Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136
(Fed. Cir. 2015)).
In this case, the third-party uses are not so “ubiquitous” or “considerable” that we
can conclude that customers have been conditioned to distinguish between different
H2-formative marks for nutritional and dietary supplements. See In re i.am.symbolic,
LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (evidence of third-party
use “falls short of the ‘ubiquitous’ or ‘considerable’ use of the mark components
present in [applicant’s] cited cases”); Jack Wolfskin, 116 USPQ2d at 1136 (discussing
“voluminous evidence” of registration and use of paw print design elements); Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 & n.1
(Fed. Cir. 2015) (referring to evidence of “a considerable number,” 26 third-party
marks).
Serial No. 88134289
- 10 -
Applicant also made of record various H2-formative third-party registrations in
the nutrition and dietary supplement industry, including those for “goods pertaining
to water and/or hydrogen”:9
Registration
No.
Mark Relevant Goods10
5661875

Nutritional supplements; dietary
supplements; nutritional
supplements for muscle building
and diuretic (excessive water
expulsion) effect; all of the
foregoing for human consumption
5612684 H2WHOA! Effervescent nutritional and
mineral supplement tablets
4948769 H2PRO Dietary supplemental drinks in the
nature of vitamin and mineral
beverages; Liquid nutritional
supplement; Liquid vitamin
supplements; Vitamin and mineral
supplements
5040928

Dietary supplement hydrogen-
enriched beverage for benefiting
sports performance, physical
recovery and general physical
health
3952201 H2 OMEGA-3
(OMEGA-3 disclaimed)
Dietary and nutritional
supplements containing omega-3
fatty acids
5769282 H2 BIOTICS
(BIOTICS disclaimed)
Nutritional supplements; Probiotic
preparations for medical use;
Probiotic supplements

9 July 10, 2020 Response; TSDR 11-33; and January 29, 2020 Request for Reconsideration;
TSDR 33-61. We have not considered Registration No. 4403540 because it has cancelled and
therefore has no value in this appeal. A cancelled or expired registration has no probative
value other than to show that it once issued and it is not entitled to any of the statutory
presumptions of Section 7(b) of the Trademark Act. In Re Ginc UK Limited, 90 USPQ2d 1472,
1480 (TTAB 2007). Similarly, application Serial Nos. 87497289, 88087893, 88472067,
87497289, and 8708835 have no probative value other than as evidence that the applications
were filed. In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1159 (TTAB 2019). We also note
that Applicant relied on Registration Nos. 5661875, 4897678, and 5040928 to both to show
third-party registration of H2-formative marks covering nutritional supplements and for
goods pertaining to water and hydrogen.
Registration No. 4060043 also has no value as a third-party registration because it is
involved in this proceeding, having been cited as a bar to the registration of Applicant’s mark.
10 Some of the registrations include additional goods.
Serial No. 88134289
- 11 -
Registration
No.
Mark Relevant Goods
4897678 ACTIVE H2
(H2 disclaimed)
Nutritional supplements containing
hydrogen
5856602

(ACQUA ARRICCHITA
D’OSSIGENO tranlated as
“water enriched with oxygen”
and disclaimed)
Vitamin and Oxygen enriched
water for medical purposes (Cl. 5);

Drinking water; bottled water;
sports drinks; filtered drinking
water (Cl. 32)
5855535

(H2 HYDROGEN FOR
HEALTH disclaimed)
Hydrogen health products, namely
hydrogen enriched water for
medical purposes, cartridges sold
pre-filled with hydrogen gas
mixtures for medical use, and
hydrogen enriched dietary and
nutritional supplements
5731652 H2 TRUE
(H2 disclaimed)
Dietary supplements containing
hydrogen
5507554

(H2 and HYDROGEN
WATER disclaimed)
Dietary supplement hydrogen-
enriched beverage for benefiting
sports performance, physical
recovery and general physical
health
4966657 SPORTS H2
(H2 disclaimed)
Dietary and nutritional
supplements; dietary supplements
for human consumption; nutritional
supplements containing hydrogen;
dietary and nutritional
supplements for human
consumption in tablet form that
infuses water with molecular
hydrogen; dietary and nutritional
supplements for human
consumption in tablet form that
consists of a blend of pure
magnesium, malic acid, fumaric
acid and mannitol that act to
synergistically generate in water
molecular hydrogen and electron-
rich potential
4912797 MAXH2 Dietary and nutritional
supplements; Dietary supplements
consisting primarily of hydrogen;
Dietary supplements for human
Serial No. 88134289
- 12 -
Registration
No.
Mark Relevant Goods
consumption; Nutritional
supplements; Nutritional
supplements in the form of
capsules; Vitamin and mineral
supplements

Although registrations alone are not evidence that the registered marks are in use
on a commercial scale, see In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d
1738, 1745 (TTAB 2016), they may show that a term carries a descriptive or
suggestive meaning. That is, similar to dictionary definitions, “third party
registrations are relevant to prove that some segment of the composite marks which
both contesting parties use has a normally understood and well-recognized
descriptive or suggestive meaning, leading to the conclusion that that segment is
relatively weak.” Juice Generation, 115 USPQ2d at 1675 (quoting 2 MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 11:90 (4th ed. 2015)).
The third-party registration (and use) evidence of record corroborate that H2 has
a recognized meaning when used in connection with dietary and nutritional
supplements, namely that they are comprised of or include either hydrogen or water,
or otherwise pertain to those elements, such that consumers encountering the cited
mark are likely to perceive the H2 portion as alluding to either hydrogen or water.
We thus find that the cited mark is conceptually weak and entitled to a limited scope
of protection.
Nonetheless, even weak marks are entitled to protection against registration of
similar marks (as more fully discussed below) for legally identical goods. See In re
Serial No. 88134289
- 13 -
Max Capital Grp. Ltd., 93 USPQ2d at 1246; see also In re Clorox Co., 578 F.2d 305,
198 USPQ 337, 341 (CCPA 1978) (ERASE for a laundry soil and stain remover held
confusingly similar to STAIN ERASER, registered on the Supplemental Register, for
stain remover); King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 109 (CCPA 1974) (“Confusion is confusion. The likelihood thereof is to be
avoided, as much between ‘weak’ marks as between ‘strong’ marks, or as between a
‘weak’ and a ‘strong’ mark.”); In re Chica Inc., 84 USPQ2d 1845, 1850 (TTAB 2007);
In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982).
2. Similarity or Dissimilarly of the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
USPQ2d at 1160; DuPont, 177 USPQ at 567. The issue is not whether the marks can
be distinguished when subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in terms of their overall commercial impression that
confusion as to the source of the goods offered under the respective marks is likely to
result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser,
who normally retains a general rather than specific impression of trademarks. 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); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not predicate our analysis
on a dissection of the involved marks; we consider the marks in their entireties. Stone
Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005,
Serial No. 88134289
- 14 -
212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”).
We also are mindful that where, as here, the goods are legally identical, the 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., 101 USPQ2d
at 1721; 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).
We compare Applicant’s mark H2Q with the cited mark and find them
similar in appearance in that they both are three-letter terms that begin with the
characters H2, although they end with the letters Q or G, respectively. That
distinction being the major difference between them. However, because the different
letters appear at the end of each mark, consumers may not notice the difference,
particularly if Applicant’s mark is presented in a stylization that is the same or very
similar to that of the cited mark. More explicitly, because Applicant seeks registration
of its mark in standard characters, we must consider that Applicant’s mark could be
displayed in the same lettering style or font as the cited mark such that the letter “Q”
in Applicant’s mark, like the letter “G” in the cited mark, either resembles the letter
“O” or may be perceived as somewhat ambiguous, perhaps suggesting H2O, thereby
further diminishing the differences in appearance. See Viterra, 101 USPQ2d at 1909-
10; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253,
Serial No. 88134289
- 15 -
1259 (Fed. Cir. 2011); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1886
(TTAB 2018) (literal elements of standard character marks may be presented in any
font style, size or color). While, the letters G and Q may often be typographically
different, we must contemplate the possibility that a letter may be represented in a
font or style that would enable it to not be “immediately recognizable.” Indeed, as
exemplified here, the rounded and tilted stylization of the letter “G” in the cited mark
is ambiguous and that letter may be perceived by potential consumers as either a “C,”
“G”, “O,” or “Q.”
We agree with Applicant that “the design elements” of the cited mark should not
and cannot be ignored. However, the cited mark is primarily comprised of stylized
letters and a stylized number. The shading within the letter “G” serves merely as
background and would not distinguish Applicant’s mark from that of Registrant. As
stated, Applicant is not limited to any particular depiction of its mark. Thus, if
Applicant were to obtain a registration, Applicant would be entitled to various
depictions of its standard character mark in terms of font style, size, or color;
Applicant’s mark could at any time in the future be displayed in a manner similar to
Registrant’s mark, that is, the characters H2Q that comprise the whole of Applicant’s
mark could not only be displayed in the same font style and size, but also in the
arrangement of the letters and number. Viterra 101 USPQ2d at 1909-10; Citigroup
v. Capital City Bank, 98 USPQ2d at 1259. See also Squirtco v. Tomy Corp., 697 F.2d
1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that a mark in
standard character format (typed) is distinct from a mark in a logo format; “[b]y
Serial No. 88134289
- 16 -
presenting its mark in a typed drawing, a difference cannot legally be asserted by
that party” (emphasis in original)); Proquest Info. and Learning Co. v. Island, 83
USPQ2d 1351, 1359 (TTAB 2007) (quoting Phillips Petroleum Co. v. C. J. Webb, Inc.,
442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971) (“[W]e must not be misled by
considering [applicant’s] mark only in its printed or typewritten form, with all the
characters being of equal height.”)).
As regards sound, the marks are similar to the extent that they have the same
number of syllables and the first portion sounds the same. Nonetheless, we agree
with Applicant that the respective marks differ aurally when spoken, when the
differences in the final letters are perceived by consumers viewing the marks.
As to connotation and commercial impression, Applicant, pointing to six Q-
formative registrations it owns for nutritional supplements containing coenzyme
Q10. (Applicant’s br. p. 19),11 maintains that given the differences in appearance and
sound, “[c]onsumers are likely to interpret the letter ‘Q’ [in its mark] as indicating
supplements containing coenzyme Q10” while, in contrast, “‘H2G’ is a clear reference
to the Cited Registration’s owner, Health2Go, Inc.,” or the impression of the chemical
symbol “H2O, namely, pertaining to water.” (Applicant’s brief, p. 20)12
We find Applicant’s argument unavailing. In this case, we must determine on this
record whether Applicant’s H2Q mark and the cited mark impart similar or

11 7 TTABVUE 20. The marks include ASTA-Q, Q-MEGA, Q-ULTRA, RESQGEL, RESQNOL,
and BIO-Q-SORB. Applicant also points to various third-party uses of Q-formative marks for
nutritional supplements containing coenzyme Q-10. We do not find this evidence persuasive.
12 7 TTABVUE 20.
Serial No. 88134289
- 17 -
dissimilar commercial impressions. That the letter “Q” in other marks, including
those registered by Applicant, may be perceived as indicating the presence of
coenzyme Q-10 in products identified thereunder, does not mean that it will be
perceived as such in Applicant’s mark H2Q mark and thus serve as a distinguishing
element. Similarly, while the record shows ownership of the cited mark by
Health2Go, Inc, the record fails to show that consumers will perceive the shading
behind the “G” in the cited mark as being the letter “O” and thus the word “GO,” such
that Registrant’s mark would be perceived as H2G[O], an abbreviation (or acronym)
for Registrant “Health2Go,” Inc.
Instead, as explained in detail above, given the legal identity of the goods, and
because of the ambiguous depiction of the letter “G” in the cited mark and the
consideration that we must give to the ways in which Applicant may depict its mark,
when viewed in their entireties, both marks are likely to impart the same
connotation, namely, that of the chemical symbol for water. That the marks may
convey additional meanings does not change our view that they have overall similar
commercial impressions.
At bottom, we recognize that consumers may not necessarily encounter the marks
in proximity and must rely upon their recollections to compare them. Neutrogena
Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many
consumers “may have but dim recollections from having previously seen or heard one
or the other of the involved marks.”). While as Applicant points out, there are
differences between the marks in terms of appearance and sound when viewed on a
Serial No. 88134289
- 18 -
side-by-side basis, we find that in their entireties, they are more similar than
dissimilar in appearance, connotation and commercial impression.
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
C. Thirteenth DuPont Factor- Other Facts Probative of the Effect
of Use
Last, Applicant asserts that it is the owner of cancelled Registration No. 3332868
for the stylized composite mark H2Q, , for “nutritional supplements”
(Prior Registration), filed on September 6, 2007 and registered November 6, 2007,
and that that registration remained active until September 17, 2018, or throughout
the pendency of the application that matured into the cited registration. Noting that
the cited registration was issued in spite of Applicant’s Prior Registration, Applicant
maintains that the USPTO has previously determined that H2Q and H2G marks for
the subject goods would not cause consumer confusion, and requests consistent
treatment in this case.
Not only does Applicant currently seek registration of a H2Q mark that is not
limited to any particular stylization and background design, the Board is not bound
by the prior decisions of examining attorneys in allowing marks for registration. See
In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB
2017). As has been noted many times, each case must be decided on its own facts. See
In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even
if some prior registrations had some characteristics similar to [applicant’s]
Serial No. 88134289
- 19 -
application, the PTO’s allowance of such prior registrations does not bind the Board
or this court.”); In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4
USPQ2d 1141, 1142 (Fed. Cir. 1987). We are therefore obligated to assess, and have
assessed, the registrability of Applicant’s mark on its own merits and have carefully
considered the arguments and evidence of record in this case.
IV. Conclusion
In conclusion, we have found that the goods, as identified in the application and
cited registration, are encompassing of one another and thus legally identical, and
that they will be offered in the same trade channels and to the same classes of
purchasers. Although the common portion of Applicant’s mark and the cited mark is
entitled to a limited scope of protection, and there are differences between the marks
in overall appearance and sound when viewed on a side-by-side basis, the commercial
impression engendered by both Applicant’s H2Q mark and the cited mark in
their entireties is very similar if not the same. Thus, even if H2-formative marks are
weak, Applicant’s and Registrant’s mark are more similar than any of the third -party
marks discussed above. See Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748
F.2d 669, 223 USPQ 1281, 1284-85 (Fed. Cir. 1984) (third-party registrations are of
significantly greater difference than marks at issue); Palisades Pageants, Inc. v. Miss
Am. Pageant, 442 F.2d 1385, 169 USPQ 790, 793 (CCPA 1971) (“[A]ppellant’s mark
is closer to appellee’s than even the closest of the third -party registrations”).
Accordingly, we find that Applicant’s mark is likely to cause confusion with the cited
mark. We make this ultimate finding with the understanding that it is Applicant’s
Serial No. 88134289
- 20 -
duty, as the newcomer, to avoid confusion. Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002).
Decision: The refusal to register Applicant’s mark is affirmed.