Leiner Health Services Corp.v.Time of Your Life, Inc.

Trademark Trial and Appeal Board

Jul 16, 2002

No. 91115937 (T.T.A.B. Jul. 16, 2002)

Hearing:
February 19, 2002
Mailed: July 16, 2002
Paper No. 19
CEW
UNITED STATES PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Leiner Health Services Corp.
v.
Time of Your Life, Inc.
_______
Opposition No. 115,937
to Application No. 75/585,561
filed on November 12, 1998
_______
Michael A. Painter of Isaacman, Kaufman & Painter for Leiner
Health Services Corp.
Richard L. Fortner, President, Time of Your Life, Inc.,
Pro Se
_______
Before Simms, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Leiner Health Services Corp. filed its opposition to
the application of Time of Your Life, Inc. to register the
mark shown below for “hair shampoo, skin soap, deodorant
soap,” in International Class 3, and “herbal supplements,
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Opposition No. 115,937
2
herbal teas for medicinal use and medicated facial and body
lotions and oils,” in International Class 5.1 The
application includes a disclaimer of NUTRACEUTICALS apart
from the mark as a whole.
As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s goods, so
resembles opposer’s previously used and registered word
mark, YOUR LIFE,2 and its design marks, shown below, for the

1 Application Serial No. 75/585,561, filed November 12, 1998, based upon
an allegation of a bona fide intention to use the mark in commerce in
connection with the identified goods.
2 Registration No. 1,029,138, registered January 6, 1976 (Sections 8 and
15 affidavits accepted and acknowledged, respectively; renewed for a 10
year period as of January 6, 1996), for YOUR LIFE for “vitamins,” in
International Class 5; Registration No. 1,267,613, registered February
21, 1984 (Sections 8 and 15 affidavits accepted and acknowledged,
respectively) for YOUR LIFE for “appetite suppressant,” in International
Class 5; and Registration No. 2,084,936, registered July 29, 1997, for
YOUR LIFE for “providing information regarding vitamins and dietary food
supplements by means of a global computer network” in International
Class 42.
Opposer’s notice of reliance included a certified copy of its
Registration No. 2,084,936, noted above, which was not pleaded in the
notice of opposition. In view of applicant’s lack of objection, we find
that the parties have tried, by implied consent, any issues which arise
this additional registration, and we therefore deem the pleadings to be
amended to include opposer’s claim of ownership of this additional
registration. See Fed. R. Civ. P. 15(b); Hewlett-Packard Co. v. Human
Performance Measurement Inc., 23 USPQ2d 1390, fn. 7 (TTAB 1991); cf.
Long John Silver’s, Inc. v. Lou Scharf Incorporated, 213 USPQ 263, 266,
fn. 6 (TTAB 1982); Boise Cascade Corp. v. Cascade Coach Company, 168
USPQ 795, 797 (TTAB 1970).
Opposition No. 115,937
3
goods identified in its respective registrations as to be
likely to cause confusion, under Section 2(d) of the
Trademark Act.
3
4
Applicant, in its answer, denied the salient
allegations of the claim. Applicant admitted that opposer
“has been in the business of manufacturing and selling
vitamins and dietary food supplements, over-the-counter
pharmaceutical products and skin and hair care products, all
of which constitute personal care products which are related
to one another”; and that “opposer is the owner of the marks

3 Registration No. 1,402,829, registered July 29, 1986 (Sections 8 and
15 affidavits accepted and acknowledged, respectively), for the design
mark shown above for “vitamins and dietary food supplements,” in
International Class 5.
4 Registration No. 1,596,015, registered May 15, 1990 (Sections 8 and 15
affidavits accepted and acknowledged, respectively; renewed for a period
of 10 years as of May 15, 2000), for the design shown above for
“vitamins and dietary food supplements,” in International Class 5.
Opposition No. 115,937
4
identified in [paragraphs 2(a) through 2(d) of its notice of
opposition, i.e., the marks in opposer’s claimed
registrations].” Applicant asserted, affirmatively, that
the parties’ trademarks are dissimilar and that opposer’s
mark YOUR LIFE “is weak in that it is generic.”5
The Record
The record consists of the pleadings; the file of the
involved application; certified status and title copies of
opposer’s pleaded registrations, made of record by opposer’s
notice of reliance; the responses of applicant to opposer’s
interrogatories and requests for admissions, made of record
by opposer during its cross examination of applicant’s
testimony witness, Albert Sousa; the testimony deposition by
opposer of Norbert Guziewicz, vice president of opposer’s
parent corporation, Leiner Health Products, Inc., with
accompanying exhibits; and the testimony deposition by
applicant of Albert Sousa, with accompanying exhibits. Both
parties filed briefs on the case and an oral hearing was
held, although applicant did not appear at the oral hearing.
Evidentiary Motions by Opposer
In its brief, opposer moved to exclude applicant’s
exhibits 3 – 9 to Albert Sousa’s testimony and Mr. Sousa’s

5 The allegation that opposer’s mark is generic is a collateral attack
on opposer’s claimed registrations. This allegation has not been
considered because applicant did not file a petition to cancel any of
opposer’s claimed registrations.
Opposition No. 115,937
5
testimony relating thereto. Opposer contends that the
exhibits are irrelevant and immaterial, lack proper
foundation, and that Mr. Sousa’s testimony is hearsay.
Applicant does not, in its brief, respond to opposer’s
evidentiary objections. Rather than consider the objections
conceded, we address the merits of opposer’s objections.
Applicant’s testimony witness, Albert Sousa, described
himself as a “retired senior health care executive” and a
consultant “to national health care companies.” Mr. Sousa,
as part of his testimony, read portions of exhibits 3 – 9
into the record. On cross examination, Mr. Sousa
acknowledged that he has no familiarity with the documents
or the statements contained in those documents. As opposer
notes, the exhibits objected to are copies of public
records, i.e., printouts from the PTO’s U.S. Trademark
Electronic Search System (TESS). These documents are
amenable to submission with a notice of reliance. It
follows that these documents are also amenable to submission
in connection with testimony and that what constitutes
proper foundation for public records is different from the
necessary foundation for applicant’s own business records.
Because these TESS records include the official website from
which they were downloaded and the date, we find these
exhibits to be acceptable on their face as copies of third-
party registrations and lists of third-party registrations.
Opposition No. 115,937
6
Third-party registrations are relevant in a case involving
likelihood of confusion. Mr. Sousa’s reading of the TESS
documents is not hearsay. Therefore, these documents are
properly of record and we deny applicant’s motion to exclude
exhibits 3 - 9.
However, applicant’s exhibits 3 – 9 are of little, if
any, probative value. Exhibits 3 and 9 are merely lists of
third-party registrations with no reference to the goods or
services or other pertinent registration facts. Such
listings do not make the individual registrations of record
and give us no information from which we can draw
conclusions about other marks registered in the field of
goods involved herein. Mr. Sousa stated, from his personal
knowledge, that he was aware of the use of one of the listed
marks on supplements sold at a gym where his children
exercised. This is insufficient evidence to establish the
nature or extent of use of that mark. Similarly, exhibits 4
– 8, copies of five third-party registrations of marks
containing the phrase “your life,” do not establish the use
of those marks. Finally, each case must be decided on its
merits and we have no information in this record regarding
the facts pertaining to the registration of these five
marks.
Regarding Mr. Sousa’s testimony, we have not considered
any statements made based on speculation or hearsay. Those
Opposition No. 115,937
7
statements based simply on what Mr. Sousa had been told by
Mr. Richard Fortner, applicant’s president and
representative conducting the testimony deposition, are
hearsay.
Finally, in its brief, opposer asks the Board to take
judicial notice of prior oppositions that opposer has
brought against third parties seeking to register marks,
that are referred to for the first time in opposer’s brief.
The evidence submitted is untimely. Therefore, this is not
proper material for judicial notice and opposer’s request is
denied.
The Parties
Opposer manufactures vitamins, nutritional supplements
and over-the-counter drugs. Opposer is the largest supplier
of private label vitamins in the United States; and markets
223 vitamin and nutritional supplement products under its
“flagship” brand, YOUR LIFE. Additionally, opposer has two
lines of skin care products marketed under the marks
BODYCOLOGY and NATURAL LIFE. Opposer’s gross sales of its
YOUR LIFE products went from approximately $55 million in
1993 to more than $100 million in 2000.
Opposer first began using the mark YOUR LIFE
in 1972. It markets and sells its YOUR LIFE products to
food, drug and mass retailers, selling to over 23,000 stores
throughout the United States. Opposer advertises nationally
Opposition No. 115,937
8
both to the trade in numerous trade journals and to
consumers through television and print media, including a
substantial amount of cooperative advertising with
retailers. Opposer’s advertising costs ranged from more
than $4 million in 1993 to approximately $11 million in
2000.
Opposer was a licensee of the U.S. Olympic Committee
for its YOUR LIFE nutritional supplements between, at least,
1992 and 1996. YOUR LIFE vitamins are part of a 100-brand
market segment called “broadline brands” and the YOUR LIFE
brand ranks third nationally in this category (which
translates to a 1.9% share of the entire vitamin market).
Opposer also sells vitamin daily packs and has been a leader
in this category since the 1970’s, with a 53% market share.
Opposer participates in market and brand awareness research
and studies. A 1999 Gallup study of vitamin use in the
United States concluded that 11% of all regular vitamin
users in the United States are aware of the YOUR LIFE line
of vitamins.
Applicant manufactures, distributes and retails dietary
supplements and has been in this business since 1996 or
1997.6

6 In applicant’s answers to opposer’s interrogatories there are several
apparent discrepancies regarding the dates applicant commenced its
business and its use, if any, of its mark. Thus, no conclusions can be
drawn in this regard.
Opposition No. 115,937
9
Analysis
Inasmuch as certified copies of opposer’s pleaded
registrations are of record, there is no issue with respect
to opposer’s priority. King Candy Co., Inc. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA
1974).
Our determination of likelihood of confusion under
Section 2(d) must be based on an analysis of all of the
probative facts in evidence that are relevant to the factors
bearing on the likelihood of confusion issue. In re E.I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). 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, 29 (CCPA
1976). See also In re Azteca Restaurant Enterprises, Inc.,
50 USPQ2d 1209 (TTAB 1999) and the cases cited therein.
With respect to the goods of the parties, we observe
that there is a substantial overlap in the goods identified
in the application and in the pleaded registrations and with
opposer’s established use. Applicant’s “herbal supplements”
are subsumed within opposer’s “dietary food supplements” and
“appetite suppressants,” which encompasses herbal
Opposition No. 115,937
10
supplements to suppress appetite. Opposer’s evidence
establishes that its YOUR LIFE mark is used in connection
with herbal supplements; and that its herbal supplements are
advertised together with its “vitamins.” Thus, applicant’s
goods in International Class 5 are identical, and closely
related, to opposer’s goods identified in its registrations.
Applicant’s goods in International Class 3, hair
shampoo, skin soap and deodorant soap, are personal care
products. The evidence indicates that opposer also produces
and sells skin care products, but under different marks.
The evidence shows that opposer’s NATURAL LIFE skin care
products are advertised in print media as containing vitamin
E and are shown in advertisements beside its dietary
supplements. Applicant’s shampoo and soaps encompass herbal
and vitamin-enriched shampoo and soaps. Thus, we find that
applicant’s identified shampoo and soaps are sufficiently
related to opposer’s goods identified by its YOUR LIFE marks
that confusion is likely if both parties’ goods are
identified by substantially similar marks. Further, in its
answer, applicant admitted that opposer’s goods are personal
care products that are related to one another.
Both opposer’s and applicant’s identifications of goods
are broadly worded, without any limitations as to channels
of trade or classes of purchasers. We must presume that the
goods of applicant and opposer will be sold in all of the
Opposition No. 115,937
11
normal channels of trade to all of the usual purchasers for
goods of the type identified. See Canadian Imperial Bank v.
Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
In other words, we conclude that the channels of trade and
class of purchasers of the parties’ goods will be the same.
Turning to the marks, we note that while we must base
our determination on a comparison of the marks in their
entireties, we are guided, equally, by the well established
principle that, in articulating reasons for reaching a
conclusion on the issue of confusion, “there is nothing
improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of
the marks in their entireties.” In re National Data Corp.,
732 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Opposer contends that its mark is a strong and well
known mark that is entitled to a broad scope of protection;
that applicant’s mark appropriates opposer’s mark YOUR LIFE
in its entirety; and that YOUR LIFE is the dominant portion
of applicant’s mark.
Applicant contends that opposer’s mark is weak; that
the design element of applicant’s mark is significant and
distinguishes the parties’ marks; and that the parties’
marks are significantly different when compared in their
entireties.
Opposition No. 115,937
12
Based on the evidence in this record we cannot agree
with applicant that opposer’s YOUR LIFE mark is weak. There
is no credible evidence of third-party use or registration
of similar marks and there is no evidence suggesting that
YOUR LIFE is even minimally suggestive in connection with
the goods identified in opposer’s registrations. Rather,
the evidence establishes that opposer’s YOUR LIFE mark has
been in use for almost 30 years; that significant sums of
money have been spent over the years on advertising; that
opposer’s sales under the mark are substantial; and that the
mark enjoys considerable renown in connection with the
identified goods. Thus, opposer’s YOUR LIFE mark is
entitled to a broad scope of protection in this field of
goods.
Although applicant’s mark includes a design, the word
portion, TIME OF YOUR LIFE NUTRACEUTICALS, is likely to be
perceived as the dominant portion. The word portion of a
mark comprised of both a word and a design is normally
accorded greater weight because it would be used by
purchasers to request the goods. Ceccato v. Manifattura
Lane Gaetano Marzotto & Figli S.p.A., 32 USPQ2d 1192 (TTAB
1994); In re Appetito Provisions Co., 3 USPQ2d 1553, 1554
(TTAB 1987); and Kabushiki Kaisha Hattori Tokeiten v.
Scuotto, 228 USPQ 461, 462 (TTAB 1985).
Opposition No. 115,937
13
As an admittedly descriptive, if not generic, term,
NUTRACEUTICALS does not add any distinguishing feature to
applicant’s mark. The phrase TIME OF YOUR LIFE in
applicant’s mark incorporates opposer’s YOUR LIFE mark in
its entirety. While the additional words lend a different
connotation to “your life,” it is a derivative connotation
that still pertains to “your life,” and, if used on
identical or closely related goods in the same field, is
likely to be perceived as a derivative line of products
related to opposer’s YOUR LIFE products and originating from
the same source.
Therefore, we conclude that in view of the similarity
in the commercial impressions of applicant’s mark and
registrant’s marks, their contemporaneous use on the same
and closely related goods involved in this case is likely to
cause confusion as to the source or sponsorship of such
goods.
It is well established that one who adopts a mark
similar to the mark of another for the same or closely
related goods or services does so at his own peril, and to
the extent that we have any doubt as to likelihood of
confusion, we must resolve that doubt against the newcomer
and in favor of the prior user or registrant. See J & J
Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18
USPQ2d 1889 (Fed. Cir. 1991); In re Hyper Shoppes (Ohio),
Opposition No. 115,937
14
Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed Cir. 1988); and W.R.
Grace & Co. v. Herbert J. Meyer Industries, Inc., 190 USPQ
308 (TTAB 1976).
Decision: The opposition is sustained.