Kyäni, Inc.

Trademark Trial and Appeal Board

May 21, 2018

No. 87117834 (T.T.A.B. May. 21, 2018)

Mailed: May 21, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Kyäni, Inc.
_____

Serial No. 87117834
_____

Gordon K. Hill of Pate Baird, PLLC
for Kyäni, Inc.

Christopher Buongiorno, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
_____
Before Lykos, Adlin and Hightower,
Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Kyäni, Inc. (“Applicant”) seeks a Principal Register registration for the mark
KYÄNI TRIANGLE OF HEALTH, in standard characters, for “dietary supplements;
nutritional supplements; liquid nutritional supplement” in International Class 5.1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act on the ground that Applicant’s mark so resembles the registered mark
TRIANGLE OF HEALTH, in standard characters (HEALTH disclaimed), the subject
of two commonly-owned registrations, for:
“educational, instructional and teaching materials,

1 Application Serial No. 87117834, filed July 27, 2016 under Section 1(a) of the Trademark
Act, alleging first use dates of September 28, 2010.
This Opinion is Not a
Precedent of the TTAB
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technical bulletins and manuals, and newsletters, all in the
field of health and nutrition” in International Class 162 and

“providing a website incorporating a searchable computer
database of web-based health-related information, namely,
articles, instructional bulletins and manuals, technical
bulletins and manuals, links to related web sites,
newsletters and magazines in field of health, natural
health lifestyle, nutrition and health-related topics” in
International Class 443

that use of Applicant’s mark in connection with Applicant’s goods is likely to cause
confusion. After the refusal became final, Applicant appealed and Applicant and the
Examining Attorney filed briefs.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth
factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods or services. 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.”).

2 Registration No. 3587524, issued March 10, 2009; Section 8 affidavit accepted.
3 Registration No. 3514196, issued October 7, 2008; Section 8 affidavit accepted.
Serial No. 87117834
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A. The Marks
The marks are more similar than dissimilar “in their entireties as to 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, 1691
(Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). In fact, Applicant’s mark
consists of Registrant’s mark, in its entirety, the only difference between them being
that Applicant’s mark is preceded by Applicant’s house mark/trade name KYÄNI.
Because the marks both include the identical three-word phrase TRIANGLE OF
HEALTH, Applicant’s and Registrant’s marks look and sound quite similar, and,
because the term KYÄNI merely modifies that phrase, the marks convey quite similar
meanings. Indeed, consumers familiar with Registrant’s mark may very well perceive
Applicant’s mark as a minor modification thereof, which merely identifies the
previously anonymous source of TRIANGLE OF HEALTH-branded goods and
services.
The addition of a house mark or a trade name to a registered mark is often found
insufficient to avoid confusion, and is sometimes even found to be an “aggravation,
and not a justification….” Menendez v. Holt, 128 U.S. 514, 521 (1888). See also In re
Fiesta Palms LLC, 85 USPQ2d 1360, 1367 (TTAB 2007) (affirming refusal to register
CLUB PALMS MVP based on prior registration of MVP, finding consumers “likely to
believe that the CLUB PALMS MVP casino services is simply the now identified
source of the previously anonymous MVP casino services”); In re Pierce Foods Corp.,
230 USPQ 307, 309 (TTAB 1986) (in dicta, stating that even if Applicant’s proposed
amendment to its drawing was accepted, “Applicant’s institutional purchasers, aware
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of registrant’s CHICKEN BAKE coating mix, may well believe that applicant’s
PIERCE CHIK’N BAKE pre-seasoned chicken is a product produced under license
from registrant or otherwise sponsored or produced by registrant.”); In re Riddle, 225
USPQ 630 (TTAB 1985) (affirming refusal to register RICHARD PETTY’S ACCU
TUNE & Design based on registration for ACCU-TUNE); In re Christian Dior, S.A.,
225 USPQ 533 (TTAB 1985) (LE CACHET DE DIOR for men’s dress shirts likely to
be confused with CACHET for toilet soap, dresses and cologne); Key West Fragrance
& Cosmetic Factory, Inc. v. Mennen Co., 216 USPQ 168 (TTAB 1982) (finding
likelihood of confusion between SKIN SAVERS for face and throat lotion and
MENNEN SKIN SAVER for cosmetic and toilet preparations, namely, hand and body
lotion); In re Champion Int’l Corp., 196 USPQ 48 (TTAB 1977) (affirming refusal to
register CHECK MATE based on registration of HAMMERMILL MICR CHECK-
MATE); In re C.F. Hathaway Co., 190 USPQ 343 (TTAB 1976) (affirming refusal to
register HATHAWAY GOLF CLASSIC based on registration of GOLF CLASSIC).4
We find this case to be closely analogous.
We recognize that there are also cases where the addition of a house mark or trade
name to a registered mark is found to be sufficiently distinguishing to avoid
confusion. However, those cases tend to involve registrations for marks that have

4 In analogous circumstances, we affirmed a refusal to register VANTAGE TITAN based on
a registration for TITAN, stating: “Applicant has taken registrant’s mark and added its
‘product mark’ to it. It is not clear why the addition of the word VANTAGE would avoid
confusion. It is more likely to be considered another product from the previously anonymous
source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices.” In re
Toshiba Medical Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009). See also, Stone Lion
Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
2014) (finding STONE LION CAPITAL confusingly similar to LION and LION CAPITAL)
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been shown to be highly suggestive. Cf. Knight Textile Corp. v. Jones Investment Co.,
75 USPQ2d 1313 (TTAB 2005) (finding no likelihood of confusion between NORTON
MCNAUGHTON ESSENTIALS and ESSENTIALS for women’s clothing because
evidence established that ESSENTIALS is “highly suggestive”); TMEP
§1207.01(b)(iii) (“Additions or deletions to marks may be sufficient to avoid a
likelihood of confusion if … the matter common to the marks is not likely to be
perceived by purchasers as distinguishing source because it is merely descriptive or
diluted.”). In Knight Textile, we found ESSENTIALS be “highly suggestive” of
women’s clothing based in part on a dictionary definition, pointing out that the term
“connotes that the clothing items sold under the marks are basic and indispensable
components of, or ‘essentials’ of, one’s wardrobe.” Id. at 1316. This finding was
supported by 23 third-party registrations (registered to 21 different owners) for
marks which include ESSENTIALS for clothing, “at least two” of which “are
comprised of the word ESSENTIALS coupled with apparent house marks.” Id. at
1316-17 & n.7.
In this case, by contrast, notwithstanding that Registrant’s mark includes a
disclaimer of HEALTH, which is generally suggestive for health-related goods and
services, the evidence falls quantitatively and qualitatively well short of the evidence
presented in Knight Textile. Indeed, unlike the term ESSENTIALS, there is no
evidence that TRIANGLE OF HEALTH has a commonly-understood meaning in
connection with Registrant’s goods or services, and there is no evidence of third-party
use or registration of this shared phrase or similar phrases. Therefore, there is simply
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no basis to find that TRIANGLE OF HEALTH is “highly” suggestive of educational
materials or websites, because neither the exceedingly broad term HEALTH nor the
unitary phrase TRIANGLE OF HEALTH convey anything specific about educational
materials or websites, and there is no evidence of third-party use or registration of
similar phrases, for anything, much less health and nutrition-related educational
materials and websites. Therefore, Knight Textile is inapposite and this case is much
more closely analogous to cases such as Fiesta Palms, Key West Fragrance and Riddle.
Furthermore, we have found a likelihood in confusion in several cases where the
registered product mark was conceptually weaker than the term TRIANGLE OF
HEALTH in this case. For example, in Key West Fragrance, in finding MENNEN
SKIN SAVER for hand and body lotion confusingly similar to SKIN SAVERS for face
and throat lotion, we stated:
Where the marks are otherwise virtually the same, the
addition of a house mark or, as in this case, a surname, is
more likely to add to the likelihood of confusion than to aid
to distinguish the marks. Trademarks are intended to
designate a single, albeit an anonymous source. It is likely
not only that the two products sold under these marks
would be attributed to the same source but also that
purchasers would mistakenly assume that both were
products of respondent by virtue of its use of “MENNEN”
with the common mark.

Key West Fragrance, 216 USPQ at 170; see also, In re Riddle, 225 USPQ at 632
(consumers encountering ACCU-TUNE for automotive testing equipment and
RICHARD PETTY’S ACCU TUNE for automotive service centers “would likely
believe that Richard Petty endorsed or was in some way associated with both the
goods and the services”); In re C.F. Hathaway, 190 USPQ at 343. Here, consumers
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exposed to Applicant’s mark would likely believe there is some type of affiliation
between the two users of the identical, unitary phrase TRIANGLE OF HEALTH for
health-related goods and services.
Applicant argues that “Applicant’s TRIANGLE refers to a trio of goods (see
specimen). There is no evidence the cited registrations refer to a trio of anything.
Thus, the commercial impressions are different when the TRIANGLE in Applicant’s
mark is compared to the TRIANGLE in the cited marks.” 4 TTABVUE 7. Applicant’s
specimen depicts Applicant’s use of the involved mark for its “trio of goods,” as shown
below:

Applicant’s Specimen of Use. We are not persuaded that this intended meaning will
avoid confusion. Perhaps most importantly, as the Examining Attorney points out,
there is nothing in Applicant’s identification of goods which limits its use of the mark
to a “trio of goods.” To the contrary, if granted a registration, Applicant would enjoy
the presumptions accorded by Section 7(b) of the Act for any form of dietary or
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nutritional supplements, whether sold as a “trio,” in individual bottles or in other
quantities or combinations. Furthermore, consumers would not necessarily encounter
Applicant’s mark in the context of the webpage/specimen reproduced above; they
might encounter it through word of mouth, on signage, elsewhere on the Internet,
etc., and in those circumstances may have no context or other means by which to
understand that TRIANGLE is intended to convey a “trio of goods.” There is nothing
about Applicant’s mark itself, or its goods as identified in the application, which
suggests that the term TRIANGLE refers to a “trio of goods,” or that it means
anything different than the identical term in Registrant’s mark.
In any event, even if consumers exposed to Applicant’s specimen understood the
word TRIANGLE to refer to a “trio” of goods, it could convey the same meaning to
those exposed to Registrant’s mark, in which case the phrase TRIANGLE OF
HEALTH in both marks would be identical in appearance, sound, meaning and
overall commercial impression. And even if the term TRIANGLE conveyed one
meaning to those encountering Applicant’s mark and another to those encountering
Registrant’s mark, that would not be sufficient to avoid confusion, because both
Registrant and Applicant use the exact same phrase, which looks and sounds
identical in each mark.5
In short, we agree with the Examining Attorney that: (1) “the wording TRIANGLE

5 Applicant cites four cases in which differences in meaning were one reason why a likelihood
of confusion was not found. 4 TTABVUE 8-9. But in each case, other differences not present
here – in the goods or services, the shared portions of the marks in question or the marks’
appearance or sound, among others – resulted in a finding of no likelihood of confusion.

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OF HEALTH comprises a prepositional phrase where the terms TRIANGLE and
HEALTH are unified by the preposition OF so the whole is unlikely to be broken down
into individual elements;” and (2) “the phrase TRIANGLE OF HEALTH will retain
its identity as a separately identifiable segment in applicant’s mark … Thus, the mere
presence of KYÄNI in applicant’s mark, regardless of whether that term is applicant’s
company name or house mark, does not diminish the likelihood that individuals will
confuse applicant’s mark with the registered marks.” 6 TTABVUE 4-5. Furthermore,
assuming Applicant is correct that “[t]he word KYÄNI alone has already been
recognized as a ‘source identifier’ for Applicant’s goods,” then Applicant’s customers
will perceive TRIANGLE OF HEALTH, which is modified by KYÄNI, as Applicant’s
product mark. If those consumers then encounter Registrant’s TRIANGLE OF
HEALTH goods or services, they could very well be confused about whether those
goods or services are somehow affiliated with Applicant. Conversely, consumers
familiar with Registrant’s mark, upon encountering Applicant’s mark, may simply
assume that KYÄNI identifies the company/source while TRIANGLE OF HEALTH
identifies the particular product. See In re Champion Int’l Corp., 196 USPQ 48, 49
(TTAB 1977); see also Toshiba Medical Sys., 91 USPQ2d at 1271; In re Apparel
Ventures, Inc., 229 USPQ 225, 226 (TTAB 1986). We must focus on the recollection of
the average purchaser, who normally retains a general rather than a specific
impression of trademarks. See Geigy Chemical Corp. v. Atlas Chemical Indus., Inc.,
438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971) (finding a likelihood that doctors would
confuse HYGROTON and HYDRONOL, given that it is necessary to consider “the
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fallibility of memory over a period of time, not merely whether one can distinguish
the marks at a given moment”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d
1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975). This factor weighs in favor of finding a likelihood of confusion.
B. The Goods and Services and Their Channels of Trade
The Examining Attorney has established that third parties offer, under the same
marks, nutritional or dietary supplements on the one hand and health-related
educational materials and websites on the other. The following websites are
illustrative:

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Office Action of April 27, 2017 (printouts from “naturesway.com,” “nowfoods.com,”
“championperformance.com,” “pi-nutrition.com” and “allmaxnutrition.com”).
In addition, the Examining Attorney introduced use-based third-party
registrations having different owners, that identify Registrant’s type goods or
services on the one hand and Applicant’s type of goods on the other, including:
YOU CAN in standard characters (Reg. No. 3967892) for
“nutritional supplements; dietary supplements,”
“educational materials, namely, newspapers in the field of
healthcare, nutritional supplements, dietary supplements
…” and “providing health information, namely,
information in the field of healthcare and nutritional
supplements, dietary supplements ….”

MARK STENGLER in standard characters (Reg. No.
4136306) for “nutritional products, namely, nutritional
supplements,” “publications, namely, books and
newsletters in the fields of health and nutrition and holistic
medicine,” “educational services, namely, a continuing
program providing information about health and
nutritional and holistic medicine … accessible by …
computer networks” and “providing information about
health and nutritional and holistic medicine.”

AMERICA’S #1 INTEGRATIVE CARDIOLOGIST in
standard characters (Supplemental Register Reg. No.
4133387) for “nutritional supplements,” “informational
and promotional publications, namely, newsletters,
catalogs, and brochures in the field of health, wellness and
nutrition” and “providing on-line information, news and
commentary in the field of health, wellness and nutrition.”

RETHINK LIFE in standard characters (Reg. No. 4548169)
for “dietary and nutritional supplements” and “books in the
field of care, self help, nutrition, health, and well being.”

SHAKLEE 180 (Reg. No. 4444728) for “dietary and
nutritional supplements,” “printed journals in the fields of
… nutrition, personal health, weight loss … and/or health
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care products” and “providing information in the field of
diet, nutrition, weight loss, health and/or wellness.”

POLIQUIN in standard characters (Reg. No. 4446454) for
“dietary and nutritional supplements,” “books in the field
of health, nutrition and fitness,” “education services,
namely, providing on-line seminars and podcasts in the
field of health, nutrition and fitness; providing a website
featuring information in the field of fitness” and “providing
a website featuring information in the field of health and
nutrition.”

THE PHYSIQUE FORMULA in standard characters (Reg.
No. 4439524) for “nutritional supplements” and “books in
the field of fitness and nutrition”

MDXCARE & Design (Reg. No. 4494113) for “dietary and
nutritional supplements” and “printed pamphlets,
brochures, manuals, books … in the field of dietary and
nutritional supplements.”

GETTING BACK TO AWESOME in standard characters
(Reg. No. 4828271) for “supplements, namely, dietary
supplements, nutritional supplements …,” “publications,
namely, printed training materials, educational materials,
books … in the field of health, nutrition, and healthy
living,” “education services, namely, providing live and on-
line seminars, training … in the field of health, nutrition,
and healthy living; providing a website featuring non-
downloadable publications … in the field of health,
nutrition, and healthy living.”

DR. TAZ MD in standard characters (Reg. No. 4937537) for
“dietary and nutritional supplements,” “educational
services, namely, providing classes … on-line journals,
namely, blogs and non-downloadable on-line newsletters,
all in the fields of health, wellness and nutrition” and
“publications, namely, informational brochures, and
informational pamphlets in the fields of health, wellness
and nutrition.”

MARKUS in standard characters (Reg. No. 4968590) for
“dietary and nutritional supplements,” “series of printed
books on the topics of health, well-being, and nutrition,”
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“educational services, namely, conducting live and online
classes, seminars, conferences and workshops in the field
of health and wellness …” and “providing a website
featuring information on health, wellness, and nutrition.”

RADO PERFORMANCE NUTRITION & Design (Reg. No.
5076655) for “dietary and nutritional supplements” and
“providing information in the field of nutrition.”

“Third-party registrations which cover a number of differing goods and/or services,
and which are based on use in commerce, although not evidence that the marks
shown therein are in use on a commercial scale or that the public is familiar with
them, may nevertheless have some probative value to the extent that they may serve
to suggest that such goods or services are of a type which may emanate from a single
source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998).
Applicant’s reliance on In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082
(Fed. Cir. 2014), is misplaced. There, the Federal Circuit reversed the Board’s finding
of a relationship between the goods and services because the “majority” of evidence
the Board relied upon was “not included in the record,” and there was minimal
evidence of the applicant’s and registrant’s goods and services being offered under
the same marks. Here, as shown above, dietary and nutritional supplements are
offered for sale on branded websites that also include health-related “educational
materials” and “newsletters” as identified in Registrant’s cited Class 16 registration,
and “health-related information” as identified in Registrant’s cited Class 44
registration, under the same marks. Similarly, the third-party registration evidence
suggests a relationship between Applicant’s goods on the one hand and Registrant’s
goods and services on the other. In fact, the record in this case, unlike the record in
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St. Helena, makes clear that educational materials, newsletters and health-related
information such as those identified in the cited registrations sometimes relate
specifically to dietary and nutritional supplements. Furthermore, it is only natural
that dietary and nutritional supplements would be sold or promoted through, or
discussed in, “health-related information,” “educational materials” and “newsletters.”
We do not require evidence to know that supplements, like over the counter and
prescription drugs, are typically accompanied by or discussed in explanatory
information, instructions, etc., which enable consumers to ensure they are choosing
the right product, ascertain its recommended uses, etc. Educational materials and
health-related information are also used to promote supplements to consumers,
especially those without scientific backgrounds, who may be unaware of the products’
recommended uses. In short, the record in this case indicates that goods and services
identified in the cited registrations and the goods identified in the involved
application often have common sources of origin, and are offered under the same
marks.
The third-party websites and registrations establish a relationship between
Applicant’s goods and Registrant’s goods and services. This factor also weighs in favor
of finding a likelihood of confusion.
The Examining Attorney’s website evidence also establishes that the channels of
trade for Applicant’s goods and Registrant’s goods and services overlap. In fact, the
websites discussed above are not only the channels of trade for dietary and nutritional
supplements and health and nutrition-related educational materials and
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information. In addition, goods such as Registrant’s health and nutrition-related
educational materials and services such as Registrant’s databases of health and
nutrition-related information are used on these sites to promote dietary and
nutritional supplements such as those identified in the involved application. For
example, the Now Foods website newsletter signup form states “Sign up for our
monthly e-newsletter to get the latest on new products ….” Similarly, the Allmax
Nutrition website promotes the company’s products alongside health and nutrition-
related videos:

Office Action of April 27, 2017 (printouts from “nowfoods.com” and
“allmaxnutrition.com”). In other words, there is, in essence, cross-pollination between
Applicant’s goods and Registrant’s goods and services within the same channels of
trade.
Applicant’s argument that it has “a very specific trade channel in that Applicant’s
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goods are sold to authorized distributors and the goods are made available to the
public through those authorized distributors,” 4 TTABVUE 11, is not well-taken. Any
differences in the channels of trade are not reflected in Applicant’s identification of
goods, and thus not relevant. Stone Lion Capital, 110 USPQ2d at 1162 (“An
application with ‘no restriction on trade channels’ cannot be ‘narrowed by testimony
that the applicant’s use is, in fact, restricted to a particular class of purchasers.’”);
Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261
(Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981). This factor also weighs in favor of
finding a likelihood of confusion.
II. Conclusion
The marks are more similar than dissimilar, the goods and services are related
and the channels of trade overlap. We therefore find a likelihood of confusion between
Applicant’s mark KYÄNI TRIANGLE OF HEALTH for dietary and nutritional
supplements and Registrant’s mark TRIANGLE OF HEALTH for health and
nutrition-related educational materials and websites.

Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.