Liquid Health Inc.

Trademark Trial and Appeal Board

Mar 23, 2011

No. 77770603 (T.T.A.B. Mar. 23, 2011)

Mailed:
March 23, 2011
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Liquid Health Inc.
________

Serial No. 77770603
_______

Kelly Abreu of Law Office of Kelly Abreu for Liquid Health
Inc.

Ellen Awrich, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Bucher, Mermelstein and Wolfson, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Liquid Health Inc. seeks registration on the Principal
Register of the mark LIQUID HEALTH (in standard character
format) for “nutritional supplements” in International Class
5.1
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon Section 2(d) of the

1 Application Serial No. 77770603 was filed on June 29, 2009,
based upon applicant’s claim of first use anywhere and first use
in commerce at least as early as January 1, 1997. No claim is
made to the exclusive right to use the word “Liquid” apart from
the mark as shown.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77770603
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Trademark Act, 15 U.S.C. § 1052(d). The Trademark Examining
Attorney has taken the position that applicant’s mark, when
used in connection with the identified goods, so resembles
the mark LIQUA HEALTH (in typed format) registered for
“vitamins and mineral supplements” also in International
Class 5,2 as to be likely to cause confusion, to cause
mistake or to deceive.
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board. The Trademark
Examining Attorney and applicant have briefed the issues
involved in this case. We affirm the refusal to register.
In urging registrability, applicant argues that its
mark does not create a likelihood of confusion with the cited
registered mark because applicant goods are different from
those of registrant; that the respective' goods will not
move through the same trade channels; and that the marketing
conditions are quite different.
By contrast, the Trademark Examining Attorney contends
that the marks are similar as to appearance, sound and
commercial impression; that the absence of actual confusion
is not persuasive of a different result herein; that
registrant and applicant are actually selling identical

2 Registration No. 2166598 issued on June 16, 1998; renewed.

Serial No. 77770603
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goods; that to the extent the goods are not overlapping, the
record contains third-party registrations showing that
“nutritional supplements” and “vitamins and mineral
supplements” are of a kind that emanate from a single
source; that there are no limits on the channels of trade;
and that applicant’s own specimen of record reinforces the
identical nature of the goods.
As a preliminary matter, the Trademark Examining
Attorney has objected to a large portion of applicant’s
brief inasmuch as it contains evidence not previously
submitted into the record. The record in any application
must be complete prior to appeal. 37 C.F.R. §2.142(d).
Accordingly, we agree with the objections of the Trademark
Examining Attorney to copies of Internet screenprints copied
into applicant’s brief, and have given no consideration to
the images or any references to them in the final brief.
TBMP §§ 1207 et seq. (2d ed. rev. 2004). See Rexall Drug
Co. v. Manhattan Drug Co., 284 F.2d 391, 128 USPQ 114 (CCPA
1960); and In re Psygnosis Ltd., 51 USPQ2d 1594 (TTAB 1999).
As we turn to a consideration of likelihood of
confusion, our determination is based upon our analysis of
all of the probative facts in evidence that are relevant to
the factors bearing on this issue. See In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
Serial No. 77770603
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The legal briefs filed herein confirm that in this case, the
two key considerations in our likelihood of confusion
analysis are the similarities between the marks and the
relationship between the goods. Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976).
As to the relationship of the respective goods, we
agree with the Trademark Examining Attorney that the record,
including several dictionary definitions, supports the
conclusion that the term
“nutritional supplements”
encompasses “vitamins and
mineral supplements” inasmuch
as both vitamins and minerals
are both taken as
“nutritional supplements.”
As further proof of this
fact, the Trademark Examining
Attorney points out that
applicant’s own specimen
clearly lists “VITAMINS &
MINERALS” as ingredients on the label of its nutritional
supplement bottle (emphasis supplied).
Serial No. 77770603
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In further support of her position, the Trademark
Examining Attorney has submitted for the record a
representative sampling of third-party registrations showing
marks used in connection with goods of the type identified
in applicant’s goods as well as the type identified by
registrant in the cited registration:
NUTRISYSTEM for “vitamins, mineral supplements, nutritional
supplements, protein supplements, herbal
supplements, meal replacement powders and
drinks, used in connection with a weight
management program” in International Class 5;3
NONI 99 for, inter alia, “appetite suppressants, central
nervous systems stimulants, cholesterol
reducers, dietary drink mix for use as a meal
replacement, dietary food supplements, dietary
supplements, food for medically restricted
diets, food supplements, food supplements,
namely anti-oxidants, herb teas for medicinal
purposes, herbal supplements, herbal teas for
medicinal purposes, homeopathic supplements,
laxatives, meal replacement and dietary
supplement drink mixes, meal replacement drinks,
meal replacement powders, mineral supplements,
nutraceuticals for the treatment of fatigue,
depression, nutraceuticals for the uses as a
dietary supplement, nutritional drink mix for
uses as a meal replacement, nutritional
supplements, nutritionally fortified water,
nutritionally fortified beverages, soy protein
for uses as a nutritional ingredient in various
powdered and ready-to-drink beverages, vitamin
and mineral supplements, vitamin drops, vitamin
supplements, and vitamins” in Int. Class 5;4
MultiSpa for “dietary and nutritional supplements;
dietary supplements for human consumption;

3 Registration No. 3251743 issued on June 12, 2007.

4 Registration No. 3262273 issued on July 10, 2007. No claim
is made to the exclusive right to use the word “Noni” apart from
the mark as shown.

Serial No. 77770603
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multi-vitamin preparations; vitamin and mineral
supplements; vitamin tablets; vitamins” in
International Class 5;5
FEEL THE
DIFFERENCE
for, inter alia, “nutritional supplements;
dietary supplements; herbal supplements; mineral
supplements; multi-vitamins; vitamins; dietary
and herbal supplements; herbal and plant derived
products, namely herbal nutritional supplements;
food supplements, namely, anti-oxidants;
homeopathic supplements; nutritional drink mix
for use as a meal replacement; nutritional food
bars for use as a meal replacement; nutritional
meal replacement powders” in Int. Class 5;6
SUPPORT
NUTRITION
for “vitamins, herbal supplements, mineral
supplements, nutritional supplements, and
dietary supplements” in International Class 5;7
BACK TO
HEALTH
for “dietary and nutritional supplements;
dietary supplements; mineral supplements;
vitamins” in International Class 5;8
Island Nutrition for “vitamins, mineral supplements, nutritional
supplements, and herbal supplements containing
amino acids, enzymes, phytonutrients, marine
extracts, and herbal extracts” in Int. Class 5;9
LEANAPLEX for “food supplements; vitamins; mineral
supplements; nutritional supplements; dietary
supplements; dietary drink mix for use as a meal
replacement” in International Class 5;10

5 Registration No. 3327548 issued on October 30, 2007.

6 Registration No. 3360909 issued on December 25, 2007.

7 Registration No. 3455377 issued on June 24, 2008. No claim
is made to the exclusive right to use the word “Nutrition” apart
from the mark as shown.

8 Registration No. 3538975 issued on November 25, 2008. No
claim is made to the exclusive right to use the word “Health”
apart from the mark as shown.

9 Registration No. 3616116 issued on May 5, 2009. No claim is
made to the exclusive right to use the word “Nutrition” apart
from the mark as shown.

10 Registration No. 3644979 issued on June 23, 2009.

Serial No. 77770603
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BODY
RESOURCES
for “dietary supplements; food supplements;
nutritional supplements; vitamin and mineral
supplements; vitamins” in Int. Class 5;11
RIGHT 4 YOUR
TYPE
for “nutritional supplements, vitamins and
mineral supplements” in International Class 5;12
VIMIREX for “vitamins; mineral supplements; nutritional
supplements” in International Class 5;13
BOP for “dietary supplements; mineral supplements;
nutritional supplements; vitamins” in
International Class 5;14
PLANKTONIC for, inter alia, “ … food supplements; dietary
supplements; mineral supplements; nutritional
supplements; vaccines; vitamins” in
International Class 5;15
NUTRIFEM for “food supplements, namely, vitamins, mineral
supplements and nutritional supplements” in
International Class 5;16 and
SUNIL PAI for “herbal supplements, mineral supplements,
homeopathic supplements, vitamins and dietary
supplements; nutritional supplements, namely,
vitamins and medicinal herbs, tinctures, namely,
herbal teas for medicinal purposes; essential
oils for medicinal purposes; nutraceuticals,
namely, mineral supplements and glandular
supplements, namely, supplements derived from
animal organs for medicinal purposes” in
International Class 5.17

11 Registration No. 3645013 issued on June 23, 2009. No claim
is made to the exclusive right to use the word “Body” apart from
the mark as shown.

12 Registration No. 3651161 issued on July 7, 2009.

13 Registration No. 3652626 issued on July 7, 2009.

14 Registration No. 3665132 issued on August 4, 2009.

15 Registration No. 3681620 issued on September 8, 2009.

16 Registration No. 3697224 issued on October 13, 2009.

17 Registration No. 3713410 issued on November 17, 2009.

Serial No. 77770603
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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
1988). See In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1786 (TTAB 1993).
Applicant also argues extensively in its final brief
and reply brief about what it has learned on the Internet
about registrant. In addition to our decision above not to
consider this tardy evidence, it is well settled that the
issue of likelihood of confusion between an applied-for mark
and a registered mark must be determined on the basis of the
goods as they are identified in the involved application and
cited registration, not on the basis of whatever the
extrinsic evidence may show. See Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir.
2002); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687,
1690 n.4 (Fed. Cir. 1993); Canadian Imperial Bank v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992);
Paula Payne Products Company v. Johnson Publishing Company,
177 USPQ 76 (CCPA 1973); and In re William Hodges & Co.,
Inc., 190 USPQ 47 (TTAB 1976). In this regard, it would be
Serial No. 77770603
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improper to permit applicant to limit or modify the
registrant’s goods based upon extrinsic evidence. See In re
Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
Hence, we must presume that registrant’s vitamins and
mineral supplements as identified in the cited registration
are available to ordinary U.S. consumers at retail, whether
it is by putting things in one’s shopping basket when
clicking through an online website or walking down the
aisles of a brick-and-mortar enterprise.
Accordingly, we find that these respective goods are
closely related, if not identical, and will move through the
same channels of trade to the same classes of ordinary
consumers, and these several related du Pont factors weighs
heavily in favor of finding a likelihood of confusion
herein.
We turn next to the du Pont factor focusing on the
similarities or dissimilarities in the appearance, sound,
connotation and commercial impression of the respective
marks. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005).
We agree with the Trademark Examining Attorney that as
to appearance, the endings of the first word in the
respective marks (e.g., “-ID” versus “–A”) is insufficient
Serial No. 77770603
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to overcome the overall similar appearance of the marks. In
its brief, applicant restates the general principle that our
focus should be on the recollection of the average purchaser
who normally retains a general rather than a special
impression of trademarks. Chemetron Corp. v. Morris
Coupling & Clamp Co. 203 USPQ 537, 540-541 (TTAB 1979); and
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Nonetheless, in this same paragraph, applicant argues that
modern consumers accustomed to the demanding precision of
Internet domain names, etc., are accustomed to absolute
precision. However, the test for likelihood of confusion is
not whether the marks can be distinguished when subjected to
a side-by-side comparison as this does not reflect the
reality of the marketplace. In this case, a very minor
change in the middle syllable of words with identical
structure creates marks that are quite similar as to
appearance and sound. As noted by the Trademark Examining
Attorney, a slight difference in the sound of similar marks
will generally not avoid a likelihood of confusion. In re
Energy Telecomm. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB
1983).
As to connotation, applicant argues that the marks have
different meanings because the word “Liquid” has a well-
known meaning while the term “Liqua” does not. See
Serial No. 77770603
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applicant’s brief at 3. However, within registrant’s
composite mark, the term “Liqua” bears such a strong
resemblance to the word “Liquid” that it will immediately
bring to mind the same connotation.
Accordingly, we conclude that when compared in their
entireties, the marks in this case – LIQUA HEALTH and LIQUID
HEALTH – create the same commercial impressions.
Finally, we turn to the du Pont factor dealing with the
length of time during and conditions under which there has
been concurrent use without evidence of actual confusion.
Applicant argues that coexistence over a period of fourteen
years provides strong evidence that confusion is not likely
to occur in the future. As to whether there has been
sufficient opportunity for confusion to occur, the record
contains no indication of the level of sales or advertising
of these nutritional supplements by applicant. The absence
of any instances of actual confusion is a meaningful factor
only where the record indicates that, for a significant
period of time, an applicant’s sales and advertising
activities have been so appreciable and continuous that, if
confusion were likely to happen, any actual incidents
thereof would be expected to have occurred and would have
come to the attention of one or both of these trademark
owners. Similarly, we have no information concerning the
Serial No. 77770603
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extent of registrant’s use, and thus we cannot tell whether
there has been sufficient opportunity for confusion to
occur. See In re Kangaroos U.S.A., 223 USPQ 1025, 1026-1027
(TTAB 1984) [arguments based on an asserted lack of
confusion are of little use in ex parte cases].
All of these enumerated factors materially reduce the
probative value of applicant’s argument regarding asserted
lack of actual confusion. Therefore, applicant’s claim that
no instances of actual confusion have been brought to
applicant’s attention is not indicative of an absence of a
likelihood of confusion. See Gillette Canada Inc. v. Ranir
Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In any event, we
are mindful of the fact that the test under Section 2(d) of
the Act is likelihood of confusion, not actual confusion.
In conclusion, we find that the goods are closely
related, if not identical; that they will move through the
same channels of trade to the same classes of ordinary
consumers; and that the marks are confusingly similar.
Decision: The refusal to register under Section 2(d)
of the Act is hereby affirmed.