Gastroceuticals, LLC

Trademark Trial and Appeal Board

Sep 2, 2010

No. 77527094 (T.T.A.B. Sep. 2, 2010)

Mailed: September 2, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board

________

In re Gastroceuticals, LLC
________

Serial No. 77527094
_______

Max Moskowitz and Sean P. McMahon of Ostrolenk Faber LLP
for Gastroceuticals, LLC.1

Natalie Polzer2, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Hairston, Kuhlke and Taylor, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Gastroceuticals, LLC has filed an application to
register on the Principal Register the mark KRYZTAL (in
standard character form) for goods ultimately identified as
“drinking water enhanced with antioxidants” in
International Class 32.3

1 Applicant was represented by other counsel prior to its filing
of the request for reconsideration.
2 A different examining attorney represented the Office prior to
briefing.
3 Serial No. 77527094, filed July 21, 2008, and alleging a bona
fide intention to use the mark in commerce.

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Ser No. 77527094
2
Registration has been refused on the ground that there
is a likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d), with the mark in U.S.
Registration No. 2946604, shown below,

for “Bottled spring water, drinking water, and flavored
water” in International Class 32.4
When the refusal was made final, applicant appealed
and requested reconsideration. The examining attorney
denied the request for reconsideration on September 15,
2009 and this appeal resumed on October 7, 2009. Both
applicant and the examining attorney filed briefs.
Before we begin our likelihood of confusion analysis,
we must discuss an evidentiary matter. The examining
attorney has objected to a printout of search results
retrieved from the Trademark Electronic Search System
(TESS), and made of record with applicant’s request for
reconsideration, on the ground that the mere submission of
a list of registrations does not make such registrations a
part of the record.5 Applicant responded to the objection,

4 Issued May 3, 2005.

5 The printout is of a list of 100 live registrations that were
retrieved by the search strategy ((bottled)ADJ(water))[GS] and
Ser No. 77527094
3
arguing that the search report was obtained from the U.S.
Patent and Trademark Office (USPTO) website and not a
private company, and introduced not to make the listed
third-party registrations of record but to demonstrate the
“sheer number” of marks that the USPTO has registered for
bottled water.
We will consider the printout properly of record for
that limited purpose, and overrule the examining attorney’s
objection to that extent. We hasten to point out that the
report is of little to no probative value. As applicant
notes, the TESS printout indicates 692 records were found
that satisfy its search query. However, the report merely
shows that “bottled water” is a recited term in the
goods/services description of the found records. We can
not ascertain how the term “bottled water” is used in those
identifications, including those of the 100 registrations
listed on the report.6 As such, and contrary to applicant’s
contention, the report does not necessarily identify
registrations of marks for “bottled water,” per se.

(live)[LD] and ‘RD>”18000101.” The printout also indicated that
692 records satisfied the query.

6 To elaborate, the term “bottled water” may only describe a
component of the identified goods and services, e.g., as part of
a survival kit, goods distributed by a distribution service or
sold in wholesale or retail stores.

Ser No. 77527094
4
Turning now to the merits of the appeal, 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
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We first consider the du Pont factor of the
similarity/dissimilarity of the marks and compare
applicant's mark KRYZTAL and registrant's mark in their
entireties in terms of sound, appearance, meaning and
commercial impression. See Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). The test 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
their entireties that confusion as to the source of the
Ser No. 77527094
5
goods offered under the respective marks is likely to
result. The focus is on the recollection of the average
purchaser, who normally retains a general, rather than a
specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant maintains that the appearance of the marks
differ; its mark containing a “YZ” element and the cited
mark containing an “IS” element, a unique ring diacritic,
and stylization of the letter “K.” Applicant contends that
it is unreasonable to assume that it would adopt either the
stylization of the letter “K” or the unique ring diacritic
featured in the cited mark.
Applicant also contends that there is no similarity in
sound, specifically arguing that its mark should be spoken
with a hard “K” with an emphasis on the letter “Z” while
the letter “K” in the cited mark is intended to be
pronounced as a “soft” consonant and the ring diacritic is
intended to draw out the pronunciation of the letter “L.”
The examining attorney, on the other hand, maintains
that applicant’s mark and the registrant’s mark are
phonetic equivalents and thus sound similar; that there is
no correct way to pronounce a mark and the marks in
question, KRYZTAL in standard characters and the stylized
mark KRISTAL, could clearly be pronounced the same; and
Ser No. 77527094
6
that such similarity in sound may be sufficient to support
a finding of likelihood of confusion.
We find the marks KRYZTAL and substantially
similar in terms of appearance, both comprised of a single
term beginning with the letters “KR” and ending with the
letters “TAL.” The difference in spelling consists of the
letters “YZ” and “IS,” respectively, which are embedded in
the middle of each mark. This difference in spelling is
not likely to be recognized and does not serve as a
distinguishing feature. In addition, the stylization of
the cited mark does not distinguish the marks, particularly
since applicant’s mark is in standard character form and
thus not restricted to any type of display. See Phillips
Petroleum Co. v. C. J. Webb, Inc., 442 F.2d 1376, 17 USPQ
35, 36 (CCPA 1971) (The court found that when a word mark
is registered in typed [or standard character] format, the
Board must consider all reasonable modes of display that
could be represented.); In re Cox Enterprises Inc., 82
USPQ2d 1040, 1044 (TTAB 2007 (“We must also consider that
applicant’s mark, presented in typed or standard character
form, is not limited to any special form or style as
displayed on its goods.”). While applicant claims that it
is unreasonable to assume that it would adopt the same
stylization as that of the registered mark, the stylization
Ser No. 77527094
7
of the letter “K” and the lower case presentation of the
remaining letters in the cited mark are not so unique or
uncommon that such a presumption would be unwarranted. In
addition, there is nothing in the record that establishes
that the registrant intended the small circle over the
letter “a” in the cited mark as a diacritic mark. In fact,
the circle is so much smaller in relation to the rest of
the mark, that it is possible that it may go largely
unnoticed.
In terms of sound, it is settled that there is no
correct way to pronounce a trademark. See In re Belgrade
Shoe, 411 F.2d 1352, 162 USPQ 227 (CCPA 1969) and Interlago
AG v. Abrams/Gentile Entertainment Inc., 63 USPQ2d 1862
(TTAB 2002). See also In re Microsoft Corp., 68 USPQ 1195
(TTAB 2003) (it is not possible to control how consumers
will vocalize marks). Despite applicant’s arguments to the
contrary, we find the marks phonetically equivalent. That
is, even if the registered mark contained a diacritic mark
to reflect an intent by registrant to suggest a particular
pronunciation of its mark, the consuming public may not
recognize the diacritic mark as such and/or be
knowledgeable of its effect on the pronunciation of the
mark.
Ser No. 77527094
8
Further, although applicant introduced evidence from
registrant’s website regarding pronunciation of the cited
mark, it failed to provide any evidence that consumers of
registrant’s drinking, bottled spring and flavored water
are familiar with the website or, if they are, remember the
suggested pronunciation when shopping in the water aisle of
supermarkets.
Despite the minor differences in spelling, the marks
KRYZTAL and KRISTAL are substantially similar in appearance
and virtually identical in sound. As such, applicant’s
mark and the cited mark are highly similar in connotation
and commercial impression. Indeed, during the prosecution
of the application, applicant remarked that “both marks
will likely be viewed as playful variations or misspellings
of the word CRYSTAL.” Applicant’s March 6, 2009 Response,
p. 4. In short, purchasers of water enhanced with
antioxidants who are familiar with registrant’s mark may
view applicant’s mark as a variant thereof, and that such
mark identifies a new line of water products sponsored by
or approved by registrant.
The factor of similarity of the marks thus favors a
finding of likelihood of confusion.
Applicant argues that “[t]he co-existence of numerous
CRYSTAL-formative marks strongly indicates that any mark
Ser No. 77527094
9
containing the word CRYSTAL, or its aural equivalent, is
entitled to only a narrow scope of protection.” Br. p. 12.
Applicant, citing Carefirst of Maryland Inc. v. FirstHealth
of the Carolinas Inc., 77 USPQ2d 1492, 1510 (TTAB 2005),
further implies that because consumers have become
conditioned to recognize that many entities use the word
“CRYSTAL” as a trademark term, they are likely be able to
distinguish between the entities based on distinctions
among the marks. In support of its position, applicant has
submitted copies of twenty-two7 third-party registrations
for marks containing the terms “C(K)RYSTAL” primarily for
water. We find these examples of limited probative value.
First, while they may be used to demonstrate that a portion
of a mark is suggestive or descriptive, they are not
evidence that the marks shown therein are in use or that
the public is aware of them. See AMF Incorporated v.
American Leisure Products, Inc., 177 USPQ 268, 269 (CCPA
1973)[“little weight is to be given such registrations in
evaluating whether there is likelihood of confusion.”].
Moreover, our review of such registrations reveals that of
the twenty-two registrations, twenty-one are for marks

7 Applicant submitted twenty-five registrations. However, three
of the registrations, i.e., Registration Nos. 2683549, 2629208
and 2618536, have been cancelled and, accordingly, will not be
further considered.

Ser No. 77527094
10
containing the term “Crystal” in combination with other
matter (i.e., CRYSTAL SPRINGS, CRYSTAL GEYSER, CRYSTAL
GLACIER, CRYSTAL MOUNTAIN, CRYSTAL BROOK, CRYSTAL CASCADE,
CRYSTAL LAKE, CRYSTAL KING, CRYSTAL RIDGE, CRYSTAL CHOICE,
CRYSTAL ROCK, CRYSTAL VALLEY, CRYSTAL ICE and design,
CRYSTAL-FRESH, NATURE’S CRYSTAL, COLORADO CRYSTAL, CRYSTAL
CREEK, CRYSTAL, CRYSTAL CANYON, CRYSTAL BEACH AND CRYSTAL
QUENCHERS), resulting in marks that are less similar to the
cited mark. The final registration for the mark KRYSTAL
covers different goods, i.e., light beverages, namely soft
drinks, fruit juices, vegetable juices and aerated fruit
juices.
We add that, even if “crystal,” or its aural
equivalents, e.g., “kryztal” and “kristal,” were considered
to be weak due to an asserted degree of common usage of
marks including the term(s), even weak marks are entitled
to protection where confusion is likely. See Matsushita
Electric Company v. National Steel Co., 442 F.2d 1383, 170
USPQ 98, 99 (CCPA 1971) [“Even though a mark may be ‘weak’
in the sense of being a common word in common use as a
trademark, it is entitled to be protected sufficiently to
prevent confusion from source arising”]. Here,
notwithstanding any alleged weakness in the registered
Ser No. 77527094
11
mark, it is still very similar in appearance, sound,
connotation and commercial impression to applicant’s mark.
To the extent that applicant is arguing for
consistency of action within the USPTO based on these
third-party registrations, we echo the examining attorney
and point out that each case must be decided on its own
merits. The determination of registrability of a mark in
another case cannot control the merits in the case now
before us. See In re Nett Designs Inc., 236 F.3d 1339, 57
USPQ2d 1564 (Fed. Cir. 2001); and In re Sun Microsystems,
59 USPQ2d 1084, 1087 (Fed. Cir. 2001). We reiterate that
in this case applicant’s mark simply is more similar to the
cited mark than any of the marks in those registrations.
We now turn to a consideration of the du Pont factor
of the relatedness of the goods. It is settled that the
question of likelihood of confusion must be determined
based on an analysis of the goods recited in applicant’s
application vis-à-vis the goods recited in the cited
registration. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ 2d
1715 (TTAB 1991). Further, it is a general rule that the
goods do not have to be identical or directly competitive
Ser No. 77527094
12
to support a finding that there is a likelihood of
confusion. It is sufficient if the respective goods are
related in some manner and/or that the conditions
surrounding their marketing are such that they would be
encountered by the same persons under circumstances that
could, because of the similarity of the marks used in
connection therewith, give rise to the mistaken belief that
they emanate from or are associated with a single source.
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993); In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978).
In this case we compare applicant’s drinking water
enhanced with antioxidants with registrant’s “spring water,
drinking water and flavored water” and find, at least with
respect to registrant’s drinking water, that the goods are
identical. That is, registrant’s broadly identified
“drinking water” must be deemed to include “drinking water
enhanced with antioxidants.” In addition, we find
applicant’s antioxidant enhanced drinking water related to
registrant’s “spring water and flavored water”; all being
types of potable water that will be used to quench thirst
and restore one’s water levels.
In short, we find unpersuasive applicant’s argument
that because applicant’s water is neither plain nor
Ser No. 77527094
13
flavored, and registrant’s water is not enhanced with
antioxidants, the goods are not sufficiently related to
cause confusion in the crowded field of “Crystal-related
marks for beverages.” First, the record does not establish
a crowded field of “Crystal” marks. Second, and as
previously noted, the goods need not be identical for a
finding of likelihood of confusion; they need only be
related in such a way that consumers mistakenly believe a
commonality of source. See Albert Trostel & Sons Co.,
supra.
Furthermore, in view of our finding that the goods of
registrant, in part, encompass those of applicant, and
inasmuch as neither applicant’s identification of goods nor
that of registrant recite any limitations as to any
specific channels of trade or classes of consumers, we
presume an overlap and that those goods will be offered in
the same trade channels, including grocery stores and
convenience stores, and to the same classes of purchasers,
including ordinary consumers. See In re Elbaum, 211 USPQ
639, 640 (TTAB 1981).
Based on statements the registrant made in connection
with the prosecution of its application for the cited mark,
applicant argues that registrant uses its mark only in
connection with a store brand of water sold in its
Ser No. 77527094
14
supermarkets in Texas; whereas, in contrast, applicant’s
water is not a store brand of bottled water and will not be
sold exclusively in any one type of supermarket. We find
this argument unavailing. The owner of a registration
without specified limitations enjoys a presumption of
exclusive right to nationwide use of the registration, i.e.
that the registration shall be prima facie evidence of the
registrant’s exclusive right to use the mark in connection
with the goods and services identified in the certificate.
See Trademark Act Section 7(b), 15 U.S.C. § 1057(b).
Because there are neither geographic or trade channel
restrictions in the cited registration, we must presume
that registrant’s water products are sold in all usual
channels of trade for such products, including a variety of
supermarkets across the United States. Similarly, absent
any limitations in the identification of goods, applicant’s
water must be presumed to be sold in registrant’s
supermarkets. We also point out that, even if relevant,
the statements relied upon by applicant were made over five
years ago and may not now accurately reflect the current
sales of registrant’s drinking water.
In view of the foregoing, the du Pont factors of the
relatedness of the goods, channels of trade and classes of
Ser No. 77527094
15
purchasers strongly favor a finding of likelihood of
confusion.
Last, applicant contends that the United States is the
largest consumer market for bottled water in the world,
that there are over 700 marks covering bottled water that
are registered with the USPTO and, that with so many brands
to choose from, consumers are likely to be careful and
discriminating in their purchasing decisions. We find this
argument unpersuasive. First, not only is there no
evidence to support applicant’s contention that there are
over 700 marks registered with the USPTO for bottled water,
even if there were, there is nothing of record to
demonstrate that either consumer demand or sheer volume of
marks for similar goods results in a discriminating
purchaser. The record shows, however, that bottled water
in the United States is low-priced, typically costing
between $.25 and $2 per bottle.8 It is settled that
purchasers of low cost ordinary consumer items are held to
a lower standard of purchasing care and are more likely to
be confused as to the source of the goods. See Specialty
Brands, Inc. v. Coffee Bean Distributors, Inc. 748 F.2d
669, 223 USPQ 1281 (Fed. Cir. 1984). We thus find that the

8 Applicant’s Request for Reconsideration, Exh. B.

Ser No. 77527094
16
parties’ respective water products are inexpensive ordinary
consumer items which are or will be purchased by ordinary
consumers exercising only a normal degree of care.
After careful consideration of all of the arguments
and the evidence of record, we conclude that purchasers
familiar with registrant’s bottled spring water, drinking
water, and flavored water sold under the mark would be
likely to believe, upon encountering applicant’s mark
KRYZTAL for drinking water enhanced with antioxidants, that
such goods originate from or are sponsored by or affiliated
with the same source.

Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.