FitLife Brands, Inc.v.Fit Life L.L.C dba Fit Life

Trademark Trial and Appeal Board

Sep 8, 2016

No. 91223049 (T.T.A.B. Sep. 8, 2016)

Mailed: September 8, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

FitLife Brands, Inc.
v.
Fit Life L.L.C dba Fit Life
_____

Opposition No. 91223049
to application Serial No. 86413382
_____

Tracy L. Deutmeyer and Brian T. McKernan of McGrath North Mullin & Kratz, PC
LLO for FitLife Brands, Inc.

FitLife L.L.C., pro se.
______

Before Cataldo, Bergsman and Gorowitz,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Fit Life L.L.C., filed an application to register the mark shown below
for:
Dietary and nutritional supplements; Dietary food
supplements; Dietary supplements; Dietary supplements
for human consumption; Food supplements; Health food
supplements; Herbal supplements; Mineral food
supplements; Mineral nutritional supplements; Mineral
supplements; Natural herbal supplements; Nutraceuticals
This Opinion is not a
Precedent of the TTAB
Opposition No. 91223049

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for use as a dietary supplement; Nutritional supplements
in International Class 5.1

Opposer, FitLife Brands, Inc., opposed the application on the ground of
likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d).2 Opposer alleges prior use and ownership of an application for the mark
FITLIFE BRANDS (in standard characters with “BRANDS” disclaimed) for “dietary
and nutritional supplements” in International Class 5.3
Applicant filed an answer admitting that “the literal element [of its mark] is
highly similar” to Opposer’s mark. (Answer ¶ 10, 4 TTABVUE 3); and that

1 Application Serial No. 86413382 was filed on October 2, 2014, based upon an allegation of
a bona fide intent to use the mark in commerce on the goods. The application includes the
following description of the mark and color statement:
The mark consists of a yellow lotus flower sitting on a plate like object with a grey and
white center and a light green rim fading to white along the back and with the words “FIT
LIFE” in dark green with black shadowing under the design element.
The colors yellow, light green, dark green, black, white, and grey are claimed as a feature
of the mark.
2 Opposer also asserted dilution under Section 43(c), 15 U.S.C. § 1125(c) as a ground for
opposition. Because Opposer did not pursue this claim during trial or in its brief, we find, in
accordance with the Board’s usual practice, that the claim is waived. Alcatraz Media Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 (TTAB 2013).
3 Application Serial No. 86690726 was filed on July 13, 2015, based upon an allegation of
October 17, 2013 as a date of first use of the mark anywhere and in commerce.
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“Applicant’s Goods are related to the nutritional and dietary supplements sold and
offered for sale by Opposer under Opposer’s Marks. All of such goods are likely to
travel through similar trade channels.” (Answer ¶ 11, Id.). Applicant denied all
other salient allegations in the notice of opposition and asserted six “affirmative
defenses” that are more in the nature of amplifications of its denials and have been
so construed.
On December 7, 2015, the parties filed an amended stipulation to utilize the
Board’s Accelerated Case Resolution, or ACR, procedure.4 A summary of the
stipulation approved by the Board is set forth below:
• the parties will submit their briefs and evidence in a cross-motion for
summary judgment format with optional notices of reliance, and forego
oral hearing;

• priority is not at issue;

• the sole issue before the Board is likelihood of confusion;

• the parties agree to service by email; and

• the Board may resolve disputes as to any material fact which the Board
may find to exist and may issue a final ruling after considering the
parties’ ACR submissions.

The Record

The record includes the pleadings, and by operation of Trademark Rule 2.122(b),
37 CFR § 2.122(b), the application file of the opposed application. In addition, the
parties introduced evidence with their ACR briefs and Opposer introduced evidence
by Notice of Reliance.

4 In an order issued on January 19, 2016, the Board accepted the parties’ stipulation to
proceed via ACR.
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Opposer’s evidence:
1. Declaration of Jenna E. Sinnett, Opposer’s Chief
Operating Officer, with the following exhibits: (12
TTABVUE 33-67);
a press release announcing Opposer’s change of
name from Bond Laboratories, Inc. to FitLife
Brands, Inc.;
a copy of Opposer’s Form 8-K as a publicly
traded company filed with the Securities and
Exchange Commission;
photographs of packaging of Opposer’s goods
displaying its mark;
2. Declaration of Tracy L. Deutmeyer, counsel for
Opposer, with the following exhibits: (12 TTABVUE
34-96);
a copy of Opposer’s pleaded application,
including an Office action from the Trademark
Examining Attorney citing Applicant’s involved
application as a potential bar to registration;
a copy of the first two pages of Ms. Deutmeyer’s
search of Google.com for the term “FitLife
Supplements;”
3. Opposer’s Notice of Reliance (11 TTABVUE 1-131)
on third-party registrations for marks consisting of
or comprising “FitLife,” third party registrations for
marks identifying Applicant’s goods and Opposer’s
goods, a certified copy of Opposer’s Certificate of
Amendment to Articles of Incorporation and
Certificate of Good Standing, and printed copies of
pages from Internet websites demonstrating that the
parties’ goods emanate from a common source and
travel in the same trade channels; and
4. Opposer’s Notice of Reliance (10 TTABVUE 1-19)
upon its initial disclosures, and Applicant’s
responses to certain of its written discovery requests.

Applicant’s evidence:
copies of photographs of Opposer’s goods and
screenshots from Opposer’s website. (12 TTABVUE
1-70).

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Standing and Priority
Opposer has introduced evidence that Applicant’s involved application has been
cited as a potential bar to registration of its pleaded application. (12 TTABVUE 78-
83). “The filing of opposer’s application and the Office’s action taken in regard to
that application provides opposer with a basis for pleading its standing.” Fiat Group
Automobiles S.p.A. v. ISM, Inc., 94 USPQ2d 1111, 1112 (TTAB 2010), citing Life
Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008); See also
ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012). Opposer
thus has demonstrated its standing to bring this opposition.
In accordance with the parties’ stipulation, there is no issue as to Opposer’s
priority.
Likelihood of Confusion
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 Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic Distilling Co., Inc., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence of record
on these factors, we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976); see also In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
Opposition No. 91223049

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1. Similarity or dissimilarity of the goods, channels of trade and
class of purchasers.

We start our analysis with the second and third du Pont factors and look at the
relationship between the goods at issue, the channels of trade in which they travel
and the class of purchasers. When determining the relationship between the goods
and services,
[t]he authority is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the
identification of goods [and services] 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 sales of the goods [and
rendering of services] are directed.
Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); see also Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-1162 (Fed. Cir. 2014).
“[A] likelihood of confusion may be found with respect to a particular class based on
any item within the identification of goods for that class.” Rocket Trademarks Pty
Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1073 (TTAB 2011); see also Tuxedo
Monopoly Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
Applicant’s “dietary and nutritional supplements” are identical to the goods
recited in Opposer’s pleaded application. In addition, there are no restrictions in
either the application or the registration as to channels of trade in which
Applicant’s goods and Opposer’s goods are sold. “It is well established that absent
restrictions in the application and registration, [identical] goods and services are
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presumed to travel in the same channels of trade to the same class of purchasers.”
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d, 1905, 1908 (Fed. Cir. 2012). Because
the goods are in part identical, those goods must be presumed to travel in the same
channels of trade to the same classes of purchasers.5
2. Similarity or dissimilarity of the marks.
We continue our analysis with the first du Pont factor, the similarity or
dissimilarity of the mark and FITLIFE BRANDS (standard
characters, BRANDS disclaimed) and compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imps., 73
USPQ2d at 1691. “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., Inc., 101 USPQ2d at 1721 (emphasis
added).
While “the similarity or dissimilarity of the marks is determined based on the
marks in their entireties … there is nothing improper in stating that, for rational

5 Because Applicant’s goods are identical in part to Opposer’s goods, we need not consider
the relatedness of the remaining goods identified in Class 5 in the involved application.
Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d at 1073. We observe nonetheless
that, based upon the admission in Applicant’s answer and Opposer’s evidence, the
remaining goods in the involved application are related to Opposer’s goods.
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reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties.” In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). Finally, we note that it is well-settled that, where the goods are identical or
legally identical, typically less similarity between the marks is needed for us to find
a likelihood of confusion. See In re Viterra, 101 USPQ2d at 1908; Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992) (“When marks would appear on virtually identical goods or services, the
degree of similarity necessary to support a conclusion of likely confusion declines.”).
In this case, Applicant’s mark is a composite mark consisting of a verbal or
literal portion (FIT LIFE) and a design. When evaluating a composite mark
containing both words and designs, the verbal portion of the mark often is the one
most likely to indicate the origin of the goods to which it is affixed because it is the
portion of the mark that consumers would use to refer to or request the goods or
services. Viterra, 101 USPQ2d at 1908, 1911.
The only differences in the literal portions of the marks FITLIFE BRANDS and
FIT LIFE and design is the presence of the disclaimed, non-distinctive term
“BRANDS” in Opposer’s mark. Both marks connote that the dietary and nutritional
supplements offered thereunder help the user pursue a fit and healthy life. Thus,
Opposer’s and Applicant’s marks suggest that the goods offered by Opposer and
Applicant improve the fitness of the consumers thereof. There is no evidence of
record regarding the significance of the design of a lotus flower on a plate in
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Applicant’s mark; however, there is nothing inherent in the design that
significantly alters the overall connotation of Applicant’s mark or creates a meaning
that is separate and distinct from that engendered by Opposer’s mark.
As such, while there are differences between the marks, the marks are similar
when spoken, and the connotations and overall commercial impressions are far
more similar than dissimilar.
Conclusion
Having considered all the evidence and arguments on the relevant du Pont
factors, whether specifically discussed herein or not, we conclude that Applicant’s
use of the mark for goods including “dietary and nutritional
supplements” is likely to cause confusion with Opposer’s mark FITLIFE BRANDS
for identical goods. The du Pont factors of the identity in part of the goods, channels
of trade and classes of consumers, as well as the overall similarity of the marks
weigh in favor of a finding of likelihood of confusion. None of the du Pont factors
weighs in favor of a finding of no likelihood of confusion. We have no evidence
regarding the remaining du Pont factors and, accordingly, we treat them as neutral.
Decision: The opposition is sustained.