Lotus Group, LLC

Trademark Trial and Appeal Board

Mar 15, 2013

No. 85033857 (T.T.A.B. Mar. 15, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
March 15, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Lotus Group, LLC
_____

Serial No. 85033857
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Chris Ditico of Raj Abhyankerof PC for Lotus Group, LLC
Linda Orndorff, Trademark Examining Attorney, Law Office 111 (Robert L.
Lorenzo, Managing Attorney).
_____

Before Bucher, Wolfson and Masiello, Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Lotus Group, LLC (“applicant”) seeks registration on the Principal Register of
the mark LOTUS ENERGY DRINK (in standard characters) for “light beverages,
namely, energy drinks,” in International Class 32.1
The Trademark Examining Attorney has refused registration of applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having

1 Application Serial No. 85033857 was filed on May 10, 2010, based on an allegation of first
use of November 1, 2009 and first use in commerce of March 1, 2010. No claim is made to
the exclusive right to use ENERGY DRINK apart from the mark as shown.
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determined that registration would lead to a likelihood of confusion in view of the
marks in the following registrations owned by two unrelated parties: the mark
BLUE LOTUS LIFESTYLE (in standard character format) for “energy drinks” in
International Class 32 (Reg. No. 3714881);2 and the mark LOTUS (in standard
character format) for “canned fresh fruits” in International Class 29; “fresh fruits”
in International Class 31; and “fruit juices and fruit nectars” in International Class
32 (Reg. No. 1501506).3
When the refusal was made final, applicant appealed and filed a request for
reconsideration. After the examining attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Applicable Law
Our determination under Trademark Act § 2(d) is based on an analysis of the
probative facts in evidence that are relevant to the factors bearing on a likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563
(CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). 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.

2 Registered November 24, 2009.
3 Registered August 23, 1988; renewed.
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Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. Comparison of the Goods
We first consider the similarity or dissimilarity, and nature of, the goods
described in the application and registrations, basing our evaluation on the
identifications of the goods as listed therein. Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See
also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002). It is settled that it is not necessary that the respective goods be
identical or even competitive in order to find that they are related for purposes of
our likelihood of confusion analysis. That is, the issue is not whether consumers
would confuse the goods themselves, but rather whether they would be confused as
to the source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The
goods need only be sufficiently related that consumers would be likely to assume,
upon encountering the goods under similar marks, that the goods originate from,
are sponsored or authorized by, or are otherwise connected to the same source. See
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed.
Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The goods identified in applicant’s mark LOTUS ENERGY DRINK are “light
beverages, namely, energy drinks.” The goods identified in Reg. No. 3714881 for the
mark BLUE LOTUS LIFESTYLE are “energy drinks.” Accordingly, the goods
connected with each of these two marks are legally identical. With respect to Reg.
No. 3714881, this du Pont factor strongly favors a finding of likelihood of confusion.
Serial No. 85033857

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The goods identified in Reg. No. 1501506 for the mark LOTUS are, in
pertinent part, “fruit juices and fruit nectars.” The examining attorney has
submitted copies of web pages from several third-party Internet websites to show
that these goods are closely related to energy drinks; are sold in the same stores
through similar trade channels; and are sold to the same classes of consumers. For
example, on the website www.purebiopro.com, Pure Bio Products USA advertises
both “organic fruit juice” and “organic energy drink” products under the mark
PURE BIO PRODUCTS.4 At www.7-eleven.com, refrigerated drinks including
“juice” drinks and “sports & energy” drinks are advertised for sale on the same web
page.5 Energy drinks and fruit juice are also featured on the same web page at
www.genesispure.com, under the headings “Superfruits” and “Energy”6 (with
photographs of each type of drink featured on the page), and on the web page
www.jcandy.net, offering juice drinks for sale, there is a link to “Soft & Energy
Drinks.”7 This website evidence from the Internet shows that energy drinks and
fruit juice can be manufactured by a single source and that the channels for
applicant’s and registrants’ respective goods are the same and overlapping. See,
e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re
Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).

4 Attached to the examining attorney’s denial (dated April 18, 2012) of applicant’s request
for reconsideration.
5 Id.
6 Id.
7 Id.
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Also supporting a finding that the goods are related is the examining
attorney’s evidence, submitted with her initial and final Office actions, consisting of
printouts of approximately thirty third-party, use-based registrations. Examples of
these registrations include the following;8
The mark THE POWER OF POMEGRANATE JUICE has
been registered for “fruit juices, fruit drinks, fruit juice
concentrates, fruit smoothies, fruit-flavored drinking
water, sports drinks, energy drinks, non-carbonated soft
drinks, all made in whole or significant part of
pomegranate juice”;9
The mark JIMMY JUICE has been registered for “energy
drinks; flavored waters; fruit beverages; fruit drinks;
fruit flavored soft drinks; fruit juice bases; fruit juice
concentrates; fruit-based soft drinks flavored with tea;
fruit-flavored beverages; fruit-flavored drinks; non-
alcoholic beverages containing fruit juices; non-
alcoholic beverages with tea flavor; non-alcoholic cocktail
mixes; soft drinks; soft drinks flavored with tea; sports
drinks; whey beverages”;10
The mark HOPE FOR YOU! has been registered for
“beverages, namely, apple juice, grape juice, pineapple
juice, orange juice, iced fruit drinks, frozen fruit
beverages, fruit drinks, fruit flavored soft drinks, fruit
juices, fruit juice concentrates, fruit-based soft drinks
flavored with tea, fruit nectars, flavored waters, fruit
punch, aloe vera drinks, aloe vera juices, energy drinks,
drinking water, distilled drinking water, colas, coffee-
flavored soft drinks, coffee-flavored ale, ginger ale, herbal
juices, aerated fruit juices, aerated water, glacial water,
lithia water, mineral water, seltzer water, isotonic drinks,
soda pops, Ramune, lemonade, smoothies, sherbets; non-
alcoholic beverages, namely, cocktail mixes, non-alcoholic

8 Emphasis in all identifications has been added.
9 Reg. No. 3568594, registered January 27, 2009.
10 Reg. No. 3562567; registered January 13, 2009.
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beer, non-alcoholized wines, non-alcoholic malt coolers
and non-alcoholic malt beverages”11;
The mark REDPOM has been registered for “energy
drinks; fruit beverages; fruit drinks; fruit flavored soft
drinks; fruit-flavored beverages; fruit-flavored drinks;
fruit-flavoured beverages; non-alcoholic beverages
containing fruit juices; non-alcoholic beverages,
namely, carbonated beverages; non-alcoholic fruit
juice beverages; soft drinks; sports drinks”12
The mark POLICE FUEL has been registered for “aloe
vera drinks; coffee-flavored soft drink; colas; concentrates,
syrups or powders used in the preparation of soft drinks;
distilled drinking water; drinking water; energy drinks;
fruit drinks; fruit flavored soft drinks; fruit-based soft
drinks flavored with tea; fruit-flavored drinks; guarana
drinks; isotonic drinks; pop; soft drinks; soft drinks
flavored with tea; soft drinks, namely energy drinks, soda,
carbonated soft drinks, low calorie soft drinks, non-
carbonated soft drinks, frozen fruit beverages, fruit
flavored soft drinks, fruit juice concentrates, carbonated
waters, flavored waters and other non- alcoholic
beverages, namely, punches, smoothies and lemonades;
sports drinks; fruit juices, fruit-based soft drinks
flavored with tea, carbonated energy drinks; herbal juices,
isotonic drinks, for use and/or as required by athletes and
those engaged in active or stressful sports and activities;
vegetable juices and vegetable drinks; non-alcoholic
beverages containing fruit juices, non-alcoholic beverages
with tea flavor, non-alcoholic cocktail mixes, seltzer
water, soda water, soft drinks, glacial water, vitamin
fortified drinks namely those enhanced with minerals,
nutrients, vitamins, amino acids, herbs and/or aerated
water, syrups for making soft drinks; syrups for making
fruit drinks, energy drinks and soft drinks; syrups,
powders, concentrates and effervescent tablets for the
making of drinks and beverages; vitamin drinks namely
those enhanced with minerals, nutrients, vitamins, amino

11 Reg. No. 3420462; registered April 29, 2008.
12 Reg. No. 3529231; registered November 4, 2008.
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acids, herbs and/or aerated waters and energy drinks
sold in bottles, boxes and bags”13
The mark ZOLA has been registered for “beverages,
namely, energy drinks, fruit juices, juice concentrates,
sports drinks, syrups and other preparations for making
energy drinks, fruit juices, juice concentrates, sports
drinks and syrups”;14
The mark KARMA CREATIVES has been registered for
“beverages, namely, energy drinks, bottled artesian
water, bottled water, spring water, soda pop and fruit
juices”;15
The mark POWERFUL LIQUID NUTRITION has been
registered for “aerated fruit juices; aerated water;
drinking water; energy drinks; flavored waters; fruit
drinks; fruit juices; herbal juices; mineral water; non-
alcoholic beverages containing fruit juices”;16 and
The mark XOWii THIN has been registered for “juice
beverages, namely, fruit juices and energy drinks
containing nutritional and vitamin supplements; sports
drinks, namely, energy drinks; energy drinks containing
fruit extracts, namely, berry extracts.”17
Although such registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they nonetheless have probative
value to the extent that they serve to suggest that the goods listed therein are of a
kind which may emanate from a single source under a single mark. In re Infinity
Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Mucky Duck Mustard
Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) aff’d, 864 F.2d 149 (Fed. Cir. 1988). See

13 Reg. No. 3293980; registered September 18, 2007.
14 Reg. No. 3303759; registered October 2, 2007.
15 Reg. No. 3438203; registered May 27, 2008.
16 Reg. No. 3407216; registered April 1, 2008.
17 Reg. No. 3885969; registered December 7, 2010.
Serial No. 85033857

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also, In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); and
TMEP § 1207.01(d)(iii) (October 2012).
Based on the above evidence, we find that the goods are related, are sold
through similar trade channels, and are sold to similar classes of customers.
Applicant argues that prospective customers are likely to exercise a high
degree of care when selecting applicant’s or registrant’s goods. Suffice it to say,
applicant has provided no evidence upon which we could find that any of these
goods are purchased with anything more than ordinary care. There is nothing in
the record to suggest the goods are expensive. To the contrary, a web page from
www.jcandy.net shows that a single “Tropicana Orange Juice” costs less than a
dollar.18 There is no evidence that such purchases are made after deliberation, or
that a significant period of time is required for consideration before making a
purchase. The 7-Eleven ad suggests one might even “grab one from the fridge” on
impulse.19 Accordingly, these du Pont factors weigh strongly in favor of a finding of
likelihood of confusion.
B. Comparison of the Marks
We turn next to consideration of the marks. In doing so, we are mindful of
the proposition that when marks appear on or in connection with virtually identical
or closely related goods, the degree of similarity of the marks necessary to support a
conclusion of likely confusion is not as great as when the goods are different. In re

18 Attached to the examining attorney’s denial (dated April 18, 2012) of applicant’s request
for reconsideration.
19 The ad copy reads: “Fast, cold and convenient, our refrigerated drinks will freeze the
taste buds right off your tongue.”
Serial No. 85033857

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Microsoft Corp., 68 USPQ2d 1195, 1198 (TTAB 2003); Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992),
and In re L.C. Licensing, Inc., 49 USPQ2d 1379, 1381 (TTAB 1998).
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. Palm Bay, 73 USPQ2d at 1692. The test,
under the first du Pont factor, 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 terms of their overall commercial impression that confusion
as to the source of the goods offered under the respective marks is likely to result.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). On the other hand, different features may be
analyzed to determine whether the marks are similar. Price Candy Company v.
Gold Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In
fact, 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 a consideration of the marks in their entireties. In re National
Data Corp., 224 USPQ at 751. The focus is on the recollection of the average
Serial No. 85033857

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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).
We first consider Reg. No. 1501506 for the mark LOTUS. The word “lotus”
identifies a flower, the “Nelumbo nucifer”;20 as such, it is arbitrary for energy drinks
and fruit juices. As an arbitrary term with respect to all of the goods at issue, it is
an inherently strong mark entitled to a broad scope of protection. The term LOTUS
is the entirety of registrant’s mark. It is also the dominant portion of applicant’s
mark; it is the first word in applicant’s mark and it is the only word that is not
generic. Being the first part of applicant’s mark, it “is likely to be impressed upon
the mind of a purchaser and remembered,” Presto Products, Inc. v. Nice-Pak
Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). Being the only word that is not
generic, it is the only term in the mark that is capable of identifying the source of
origin of the goods and not merely the goods themselves. See, e.g., In re Dixie
Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)
(affirming Board’s finding that DELTA, not the disclaimed generic term CAFÉ, is
the dominant portion of the mark THE DELTA CAFÉ); and In re Binion, 93
USPQ2d 1531, 1534 (TTAB 2009) (finding that BINION’S, not the disclaimed
descriptive wording ROADHOUSE, is the dominant portion of the mark BINION’S
ROADHOUSE). Of course, we recognize that applicant’s mark must be considered
in its entirety, including the generic, disclaimed words “energy drink.” Bearing this
in mind, we find that the marks are more similar in sound, appearance and

20 At en.wikipedia.org; attached to applicant’s Response dated February 3, 2011.
Serial No. 85033857

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meaning than they are dissimilar, and that both marks engender the same overall
commercial impressions, namely, that of a lotus flower. Accordingly, with respect to
Reg. No. 1501506, the marks are considered confusingly similar and the first du
Pont factor weighs heavily in favor of a finding of likelihood of confusion.
Comparing applicant’s mark LOTUS ENERGY DRINK to cited Reg.
No. 3714881 for the mark BLUE LOTUS LIFESTYLE, we apply a similar analysis.
Again, we find that LOTUS is the dominant portion of applicant’s mark, that is,
that applicant’s mark will be perceived overall as LOTUS, with ENERGY DRINK
being seen primarily as the generic name for the goods. As for the mark BLUE
LOTUS LIFESTYLE, applicant argues that based on the evidence showing the
manner in which the registrant uses its mark, it may be divided into two parts:
“blue lotus,” which the registrant advertises as a type of lotus flower that was found
in the tombs of ancient Egyptian pharaohs, and “lifestyle,” a suggestive term
defined as “the typical way of life of an individual, group, or culture.”21 As a
standard character mark, registrant’s mark is not limited to any particular font,
size, style, or color, see Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d
1344, 1353 (Fed. Cir. 2011), but even assuming the words BLUE LOTUS in
registrant’s mark will be perceived as a unitary term, applicant’s mark LOTUS and
the registrant’s mark BLUE LOTUS LIFESTYLE could be perceived as variants of
a single brand, or the latter mark considered a brand extension of the former.
Despite the obvious differences in the marks, the word “lotus” is the pivotal element

21 At www.merriam-webster.com, attached to applicant’s Response dated February 3, 2011.
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in the marks. The fact that they share the common word “lotus” makes them,
overall, more similar than dissimilar in appearance and pronunciation.
As for connotation, applicant argues that the cited mark “conveys a general
sense of healthy living,” which is alleged to be in stark contrast to the sense of
“heightened awareness” created by applicant’s mark.22 However, there is nothing in
the cited mark itself that suggests the antithesis of stimulation or energy.
Moreover, although registrant claims in its advertising that its goods are not
“energy drinks,” the goods listed in the registration for BLUE LOTUS LIFESTYLE
are, in fact, “energy drinks.” Assuming applicant’s argument that registrant’s
advertising has created a fanciful connection of its mark in the minds of relevant
consumers to a “blue lotus” flower (mythical or actual) that promotes health, there
would still be an overlap in the connotations of the two marks based on the shared
word “lotus.” Relevant purchasers may believe that applicant’s energy drinks are a
new line of beverages produced by registrant. Accordingly, the marks present
similar commercial impressions. This du Pont factor favors a finding of likelihood of
confusion with respect to Reg. No. 3714881.

22 Applicant’s Brief, pp. 5-6. Applicant relies heavily on registrant’s claims regarding “blue
lotus” flowers, apparently used by ancient Egyptians “to induce an euphoric state and
sexual enhancement, as well as being widely used as a general health aid and remedy
against illness.” At www.bluelotuslifestyle.com; attached to applicant’s Response dated
February 3, 2011. However, there is no record evidence that a blue lotus flower actually
exists or existed. The Wikipedia definition of “Nelumbo nucifer” states that lotus flowers
range in color from “hues of white to hot pink,” which does not include blue.
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C. Lack of Actual Confusion
Applicant argues that there has been no actual confusion between applicant’s
mark and the registrants’ marks despite a period of concurrent use. While lack of
actual confusion for a long period of time may be considered as evidence tending to
show that confusion is unlikely, here there has been at most two years of
contemporaneous use. This period of time is insufficient to show that purchasers
have become conditioned to a marketplace reality where applicant’s mark co-exists
with the prior marks. The fact that applicant is unaware of any actual confusion, or
report of possible confusion, is not particularly significant in this case because, “in
an ex parte proceeding of this type, a registrant or other user has no opportunity to
be heard from …; we normally do not know enough about the nature and extent of
the contemporaneous use to be able to ascertain whether there has been ample
opportunity for confusion to have arisen; and the test under Section 2(d) is not
actual confusion but likelihood of confusion.” In re Jeep Corporation, 222 USPQ
333, 337 (TTAB 1984); see also, In re Majestic Distilling, 65 USPQ2d at 1205.
Accordingly, we conclude that the actual-confusion factor is neutral in this case.
D. Balancing the factors
In view of our findings that applicant’s mark is similar to the registrants’
marks, and that the goods are related and are sold to the same classes of consumers
through similar channels of distribution, we find that applicant’s registration of the
mark LOTUS ENERGY DRINK in connection with energy drinks is likely to cause
confusion with the prior registered marks LOTUS and BLUE LOTUS LIFESTYLE
as applied to their respective goods.
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Decision: The refusal to register applicant’s mark LOTUS ENERGY DRINK
under Section 2(d) of the Trademark Act is affirmed.