Good Health Naturally, Inc.

Trademark Trial and Appeal Board

Mar 31, 2011

No. 78967470 (T.T.A.B. Mar. 31, 2011)

Mailed:
March 31, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Good Health Naturally, Inc.
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Serial No. 78967470
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Matthew H. Swyers of The Swyers Law Firm, PLLC for Good
Health Naturally, Inc.

Shaila E. Settles, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Walters, Zervas and Ritchie, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

On September 5, 2006, Good Health Naturally, Inc.
filed an application (Serial No. 78967470) to register the
mark GOOD HEALTH NATURALLY (in standard character form) for
goods ultimately identified as “On-line retail store
services featuring vitamins, minerals, dietary supplements,
[and] nutritional supplements” in International Class 35.
The application is made under Section 1(a) of the Trademark
THIS OPINION IS NOT
A PRECEDENT OF
THE T.T.A.B.
Ser No. 78967470
2
Act, 15 USC § 1051(a), and recited first use and first use
in commerce in November 2000.
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), in view of
(a) Registration No. 2444753 (issued April 17, 2001 –
Section 8 affidavit accepted) for the following
International Class 5 goods:
Anal care preparations, namely, suppositories;
antacids; anti-diarrhea medication;
antihistamines; children's elixir for the
treatment of cold and flu symptoms; preparations
for treating colds; cough syrups; decongestant
nasal sprays; diet pills; dietary supplements;
digestive aids; food bars in the nature of a food
supplement; hair growth stimulant; hemorrhoidal
cream; laxatives; motion sickness treatment
preparations; non-aspirin sinus preparations;
dietary drink mix for use as a meal replacement;
pain relief medication; pregnancy test kits for
home use; sleeping tablets; stool softener;
liquid pharmaceutical preparation for the
treatment of heartburn, nausea, and diarrhea;
vaginal ointment in the nature of anti-fungals
and vaginal suppositories; and vitamin and
mineral supplements;

and (b) Registration No. 2598221 (issued July 23, 2002 –
Section 8 affidavit accepted) for “analgesics” in
International Class 5. Both registrations issued to the
same entity and are for the following mark:

Ser No. 78967470
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Applicant has appealed the final refusal of its
application. Both applicant and the examining attorney
have filed briefs. As discussed below, the refusal to
register is affirmed as to both registrations.
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In
re Majestic Distilling Company, 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 regarding the
similarity or dissimilarity and nature of the goods and
services as described in the application and registration.
It is settled that the likelihood of confusion may result
from the use by different parties of the same or similar
marks in connection with goods, on the one hand, and
Ser No. 78967470
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services which deal with or are related to those goods, on
the other. See In re Mucky Duck Mustard Co. Inc., 6 USPQ2d
1467 (TTAB 1988); and Steelcase Inc. v. Steelcare Inc., 219
USPQ 433 (TTAB 1983). See also J. Thomas McCarthy,
Trademarks and Unfair Competition §24:25 (2006) (“[w]here
the services consist of retail sales services, likelihood
of confusion is found when another mark is used on goods
which are commonly sold through such a retail outlet.”).
We find that the parties’ goods and services are
related. The examining attorney has introduced evidence
from GNC (General Nutrition Corporation) and CVS
demonstrating that internet retailers use a particular mark
and sell analgesics, vitamins and dietary supplements under
the same mark. For example, GNC sells online GNC brand
“Triple Strength Fish Oil” and “Mega Mens Sport Vitapak”;
and CVS sells online CVS brand Health Heart Program
vitamins and Migrane Relief Caplets. Also, applicant
states in its brief that it “concedes that its services may
be construed as being related to the registered goods … .”
Brief at 4. While the evidence is not overwhelming in
quantity, we accept it as sufficient to establish that the
goods and services are commercially related, in light of
applicant’s concession.
Ser No. 78967470
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The Marks
We now consider the similarity or dissimilarity of the
marks. Specifically, we consider whether applicant's and
registrant’s marks, when viewed in their entireties, are
similar in appearance, sound, connotation and commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). We turn first to registrant’s GOOD
HEALTH mark, which includes a design element. “[I]f one of
the marks comprises both a word and a design, then the word
is normally accorded greater weight because it would be
used by purchasers to request the goods or services.” In
re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB
1987). We see no reason why this would not also be true
with respect to registrant’s mark. It is likely that the
purchasing public would refer to the sources of
registrant’s goods with the wording in registrant’s mark,
and applicant has not shown that GOOD HEALTH would not be
the dominant term in the mark. Finally, the addition of
the design in registrant’s mark does not affect the
pronunciation, meaning, or commercial impression of the
mark. Despite the presence of the design element in the
mark as shown, GOOD HEALTH remains a prominent feature of
registrant’s mark.
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Applicant also contends as part of its discussion
regarding the similarities of the marks that GOOD HEALTH is
a suggestive and therefore weak term when applied to
nutritional supplements and their retail sale, relying on
nine third-party registrations involving nutritional
supplements or the retail sale of nutritional supplements,
which applicant submitted into the record. Applicant’s
argument is based on the mistaken premise that third-party
registrations are evidence of use. The third-party
registrations submitted by applicant do not prove that GOOD
HEALTH is a weak term. Absent evidence of actual use,
third-party registrations have little probative value
because they are not evidence that the marks are in use on
a commercial scale or that the public has become familiar
with them. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing
public is not aware of registrations reposing in the U.S.
Patent and Trademark Office). See also In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983).
[I]t would be sheer speculation to draw
any inferences about which, if any of
the marks subject of the third party
(sic) registrations are still in use.
Because of this doubt, third party
(sic) registration evidence proves
nothing about the impact of the third-
party marks on purchasers in terms of
dilution of the mark in question or
Ser No. 78967470
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conditioning of the purchasers as their
weakness in distinguishing source.

In re Hub Distributing, Inc., 218 USPQ at 286.
Thus, in summary, the dominant component of
registrant’s mark is GOOD HEALTH, and on this record we do
not find GOOD HEALTH to be a weak term. However, we do
find GOOD HEALTH to be a suggestive term for the involved
goods and services, in that it suggests what may be
achieved through the use of both applicant’s and
registrant’s goods and services.
Applicant’s mark incorporates in full the dominant
component of registrant’s mark, and adds the term
NATURALLY. Applicant and the examining attorney disagree
on how NATURALLY should be treated in applicant’s mark.
The examining attorney maintains that the term is “a
descriptive term that indicates that vitamins and
supplements being sold are natural (contain natural
ingredients) or support a natural approach to health.”
Brief at unnumbered p. 6. She relies on the following
Internet evidence:
• GNC home webpage
“5 Ways Vitamin D Could Save Your Life,” “Heart
Health Supplements” and “Natural Cold & Flu
Relief.”

• GNC “Vitamins & Minerals” webpage
“For over 70 years GNC has set the standard in
the quality vitamin and mineral supplement
Ser No. 78967470
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industry. Whether you are shopping for vitamins
to boost immunity, support health aging, are
specific to men’s health and women’s health or
benefit heart and joint health, we have what
you’re looking for. At gnc.com you can get all
of your vitamins and minerals online, along with
multivitamins and health supplements to help you
live well.”

• CVS website
“Featured Vitamins – Save 20% - CVS Health Heart
Program . . . Melissa Herbal Relief of Stress &
Insomnia.”

• Walmart webpage
“Diet & Nutrition – Take good care of your
health. We’ve got your favorite brand-name
nutritional products. Digestive Health
Supplements”; “Vitamins & Herbs – High-quality
supplements. Natural care products. For Less.
Vitamins Supplements.”

However, as applicant has pointed out, the examining
attorney has not required applicant to disclaim NATURALLY.
The prosecution record reflects that the examining attorney
sought remand of the application file to consider requiring
a disclaimer, presumably of the term NATURALLY, but did not
require the disclaimer after the Board remanded the
application to her. Applicant urges us to consider
NATURALLY as an inherently distinctive term. Brief at 8.
The examining attorney’s evidence persuades us that
NATURALLY in the context of applicant’s services highly
suggests that applicant’s products have natural
ingredients.
Ser No. 78967470
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As such, it does not have sufficient source
identifying capability to distinguish applicant’s mark from
registrant’s mark. We therefore find that the marks are
highly similar in meaning and commercial impression due to
their shared term GOOD HEALTH. GOOD HEALTH is the entirety
of applicant’s mark and the dominant component of
registrant’s mark, and NATURALLY is a highly suggestive
term, indicating the “natural” component of applicant’s
goods. The marks are similar in sound and appearance too
because they both contain GOOD HEALTH, in identical word
order.
The du Pont factor regarding the similarity of the
marks therefore supports a finding of likelihood of
confusion.
Trade Channels and Classes of Purchasers
We now consider the trade channels and classes of
purchasers of both applicant's services and registrant’s
goods. Neither applicant's nor registrant’s
identifications contain any specific trade channel
limitations. If there are no trade channel limitations, we
presume that registrant’s and applicant’s identifications
encompass all goods or services of the nature and type
described, and that the identified goods or services move
in all channels of trade that would be normal for such
Ser No. 78967470
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goods or services, and that they are available to all
classes of purchasers for the described goods or services.
See Linkvest, 24 USPQ2d at 1716; In re Elbaum, 211 USPQ 639
(TTAB 1981). Certainly, the trade channels for
registrant’s goods would include internet retailers, as
well as traditional brick and mortar retailers, and would
be sold to the general public. Applicant’s services would
also be directed to the general public and entail the sale
of the very same goods included within registrant’s
identifications of goods.
Applicant submitted the declaration of its principal,
Mr. Robert Redfern, in support of its contention that the
trade channels are different with its July 21, 2009 request
for reconsideration. In his declaration, Mr. Redfern
states that applicant’s goods “exist exclusively in the
unregulated field of dietary and nutritional supplements”
and that “there is no overlap in the goods and/or marketing
channels utilized by generic drug manufacturers.” Redfern
¶ 3. He adds that registrant’s marks are “used in
connection with goods which are regulated by the FDA and
are not available online.” This argument is not persuasive
because registrant’s identification of goods includes
vitamins, mineral and dietary supplements, which applicant
has not shown to be regulated by the Food and Drug
Ser No. 78967470
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Administration and which are essentially the same goods
which applicant intends to sell as reflected in its
identification of services.
In view of the foregoing, the du Pont factors
regarding trade channels and classes of consumers are
resolved against applicant.
Conditions of Sale
In arguing that this factor favors applicant,
applicant points to Mr. Redfern’s statement in his
declaration that in his “experience with our business[,]
our customers exercise a high level of sophistication in
their purchase of our products sold under the GOOD HEALTH
NATURALLY mark. After all, they are purchasing products
which are made to benefit their health.” Redfern ¶ 9.
Applicant also cites to Miles Laboratories Inc. v.
Naturally Vitamin Supplements Inc., 1 USPQ2d 1445, 1451
(TTAB 1986), where the Board stated, “[w]e agree with
applicant … that purchasers of vitamins are likely to
exercise special care in making their product selections.”
The problem is that while Mr. Redfern testifies to the
purchases of products, applicant does not seek registration
for products but for online retail store services. There
is no evidence and applicant has not cited any case law
regarding the level of care taken by purchasers for the
Ser No. 78967470
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services specified in applicant’s identification of
services. Thus, we find (i) applicant’s arguments and
evidence unpersuasive, (ii) that ordinary care would be
undertaken by purchasers of applicant’s services in
selecting online retailers of vitamins, minerals, dietary
supplements and nutritional supplements, as well as certain
analgesics, and (iii) that the du Pont factor regarding the
conditions of sale is neutral.1
No Actual Confusion
Respondent emphasizes that the record contains no
instances of actual confusion despite the fact that both
parties have concurrently used their marks for a period of
almost nine years. Redfern at ¶ 12. However, it is not
necessary to show actual confusion in order to establish
likelihood of confusion. See Weiss Associates Inc. v. HRL
Associates Inc. 902 F.2d 1546, 223 USPQ 1025 (Fed. Cir.
1990). Thus, while evidence of actual confusion strongly
supports a finding of likelihood of confusion, the absence
thereof does not require a finding of no likelihood of
confusion. See Herbko International Inc. v. Kappa Books
Inc., 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“[a] showing

1 See also In re Total Quality Group Inc., 51 USPQ2d 1474, 1477
(TTAB 1999) (“[E]ven careful purchasers are not immune from
source confusion”).
Ser No. 78967470
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of actual confusion is not necessary to establish a
likelihood of confusion.”).2
Accordingly, this du Pont factor must be considered to
be neutral or to only slightly favor respondent.
Balancing the Factors
We have found the marks to be similar, registrant’s
goods and applicant’s services to be related, the trade
channels to be similar and the purchasers to be identical.
Also, we have found the factors regarding conditions of
purchase and actual confusion to be neutral. On balance,
we find that there is a likelihood that applicant’s mark
for its services will be confused with registrant’s mark
for the goods identified in both Registration Nos. 2444753
and 2598221.
Decision: The refusal to register pursuant to Section
2(d) of the Trademark Act is affirmed in view of both
Registration Nos. 2444753 and 2598221.

2 Mr. Redfern states that applicant maintains a call center with
a dedicated sales team. Redfern ¶ 9. This statement is
presumably offered to suggest that confusion is not likely
because there are individuals who can correct any confusion on
the part of potential purchasers before a sale is made. However,
even if such individuals are involved in the sales process, there
is nothing in applicant’s identification of services that limits
applicant from not using such personnel in its sales, and it does
not account for initial interest confusion.