Mannatech, Inc.

Trademark Trial and Appeal Board

Aug 17, 2016

No. 86447383 (T.T.A.B. Aug. 17, 2016)

Mailed: August 17, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Mannatech, Inc.
________

Serial No. 86447383
_______

Sanford E. Warren of Warren Rhoades LLP for Mannatech, Inc.

Tamara Frazier, Trademark Examining Attorney, Law Office 116 (Christine
Cooper, Managing Attorney).
_______

Before Quinn, Kuhlke and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Mannatech, Inc., filed an application to register on the Principal
Register the mark shown below for goods identified as “dietary and nutritional
supplements sold through a multi-level marketing program,” in International Class
5.1

1 Application Serial No. 86447383 was filed on November 6, 2014, based on Applicant’s
assertion of April 12, 2012 as a date of first use of the mark anywhere and in commerce.
This Opinion is not a
Precedent of the TTAB
Serial No. 86447383

- 2 -
The application includes the following description of the mark and color claim: “The
mark consists of stylized NUTRI with a plant in the shape of a V followed by stylized
ERUS.” “Color is not claimed as a feature of the mark.”
Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used with the identified
goods, so resembles the mark shown below, registered on the Principal Register for
“liquid nutritional supplement; nutritional supplements; vitamin and mineral
supplements” in International Class 5, as to be likely to cause confusion, mistake or
deception.

The cited registration includes the following description of the mark and color
claim:
The mark consists of the wording “ NU” in green. The word
“ VERUS” is below the wording “ NU”, in the color white. The
design of a mortar and pestle in the color green is to the left of the
wording “NU VERUS”, all on a black background.

The color(s) green, white and black is/are claimed as a feature of
the mark.2

2 Registration No. 3774292 issued on April 13, 2010. The registration also includes goods
identified as “energy drinks; fruit juice” in International Class 32. Section 8 affidavit
accepted; Section 15 affidavit acknowledged.
Serial No. 86447383

- 3 -
When the refusal was made final, Applicant appealed, and Applicant and the
Examining Attorney filed briefs. We affirm the refusal to register.
When the question is likelihood of confusion, we analyze the facts as they relate to
the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 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 or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Similarity of the Goods/Channels of Trade/Consumers
We first consider the goods, channels of trade and classes of consumers. We must
make our determinations under these factors based on the goods as they are
identified in the registration and application. See In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157 (Fed. Cir.
2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002); Octocom Systems, Inc. v. Houston Computers Services Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
In this case, Applicant’s “nutritional supplements” are identical to Registrant’s
“nutritional supplements,” and Applicant’s “dietary and nutritional supplements”
encompass Registrant’s “liquid nutritional supplement” and “vitamin and mineral
supplements.” In addition, the Examining Attorney introduced Internet evidence
Serial No. 86447383

- 4 -
that “there are close to 100 or more [multi-level marketing] companies with
vitamins and/or health and wellness products”3 including vitamins and dietary and
nutritional supplements. Thus, Applicant’s goods are identical in part to those
identified in the cited registration and otherwise related.
Considering the channels of trade and classes of purchasers, we observe that
Applicant’s goods are available “through a multi-level marketing program.”
However, because the goods are identical in part and there are no limitations as to
channels of trade or classes of consumers in the cited registration, we must presume
that Registrant’s identical goods will be offered in the same channels of trade,
namely, through multi-level marketing programs, to the same classes of consumers.
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Hewlett-
Packard Co. v. Packard Press Inc., 62 USPQ2d at 1005.
In addition, Applicant acknowledges that “Registrant’s website also suggests that
Nu Verus is a multi-level marketing program”4 and both Applicant and the
Examining Attorney have submitted screenshots from Registrant’s Internet website
in support of that contention.5 Thus, Applicant’s arguments regarding any asserted
differences in the channels of trade and marketing are not persuasive inasmuch as
we must make our determination based on the goods as identified, and here, the
identification of goods in the registration is not limited by channels of trade or
marketing. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).

3 December 12, 2015 denial of Applicant’s request for reconsideration at 6.
4 November 13, 2015 request for reconsideration at 7.
5 Id. at 20-21; December 12, 2015 denial of Applicant’s request for reconsideration at 14-23.
Serial No. 86447383

- 5 -
Simply put, Applicant’s limitation of its trade channels to “a multi-level marketing
program” does not overcome the presumed overlap of those trade channels with
Registrant’s unrestricted, in-part identical, goods. Applicant’s argument that “the
goods would never appear side by side on a store shelf nor would either company’s
goods appear for sale with the multitude of samples from other retailers”6 is
inapposite. It is not necessary for the Examining Attorney to demonstrate that
Applicant’s goods will appear in close proximity to those in the cited registration in
order to support a finding that the trade channels for such goods are related. As
discussed above, we must presume that Registrant’s unlimited trade channels
include the restricted trade channels in which Applicant’s in-part identical goods
are encountered. Id. The presumed overlap in trade channels is sufficient for
purposes of our likelihood of confusion analysis.
In view of the above, the du Pont factors of the similarity of the goods, the
channels of trade and classes of purchasers favor a finding of likelihood of confusion.
Similarity of the Marks
We next consider the marks and
and compare them in their entireties as to appearance, sound, connotation and
commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 110

6 8 TTABVUE 19.
Serial No. 86447383

- 6 -
USPQ2d at 1160 (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F. 3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). We
must also keep in mind that “when marks would appear on virtually identical goods
or services, the degree of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992). When we consider the marks, we
do so based on the average purchaser, who retains a general rather than specific
impression of trademarks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB
2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Consumers may not necessarily encounter the marks at issue in close proximity and
must rely upon their general recollections thereof. In re Mucky Duck Mustard Co., 6
USPQ2d 1467 (TTAB 1988).
In this case, the marks are similar to the extent that both contain the identical
term VERUS as a prominent feature thereof. VERUS is set out by itself in the
registered mark from the wording NU and the design of a mortar and pestle, and
the stylized design of a plant in the shape of a large letter “V” in Applicant’s mark
similarly sets VERUS apart from the preceding NUTRI therein. The marks further
are similar to the extent that the wording NU VERUS in the registered mark is,
overall, similar to the wording NUTRIVERUS in the applied-for mark in
appearance and sound. The addition of the letters TRI in Applicant’s mark is not
sufficient to distinguish the wording in the marks in this case. See Crocker Nat’l
Bank. V Canadian Imperial Bank of Commerce, 228 USPQ 689 (TTAB 1986), aff’d
Serial No. 86447383

- 7 -
sub nom. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
NUTRI appears as a prefix and somewhat distinct from VERUS in Applicant’s
mark. Moreover, Applicant has introduced evidence that NUTRI is the root of the
word “nourishment” which, in the context of Applicant’s goods indicates that its
nutritional supplements provide nourishment and, as such, at a minimum is
suggestive of the goods.7 By comparison, VERUS appears to be arbitrary in
connection with nutritional supplements and carries a stronger source-identifying
significance. Registrant’s mark, whether perceived as one word NUVERUS or two
words NU VERUS has a similar structure. NU appears as a prefix, and the second
portion is identical to Applicant’s second portion, VERUS. The connotation and
commercial impression of the arbitrary term VERUS is the same for both marks
used on identical goods.8 If the consumer detects the difference in the prefixes,
NUTRI and NU, they would likely perceive them as part of the same line, NU being
a shortened form of NUTRI or indicating a NU or “new” line of goods.9 The marks
thus are similar in connotation or commercial impression, i.e., new or nourishing
nutritional supplements and related goods emanating from the same source.

7 “Nutri” is defined as “prefix meaning ‘nourishment.’” Applicant’s April 14, 2015 response
to the Examining Attorney’s first Office action at 11.
8 Applicant has introduce evidence from the open source Internet encyclopedia Wikipedia
that Verus was a gladiator in the Roman Empire during the first century. Id. at 13-15. We
note, however, that there is no evidence of the extent to which contemporary consumers are
aware of this meaning of Verus, nor is there evidence of any significance of the ancient
gladiator Verus in connection with Applicant’s goods.
9 We are not persuaded by Applicant’s argument that the term NU in Registrant’s mark
will be perceived by consumers as the 13th letter in the Greek alphabet (Id. at 4; 13
TTABVUE 7, 20), inasmuch as there is no evidence that consumers of Registrant’s goods
would make such an association.
Serial No. 86447383

- 8 -
The mortar and pestle design element and colors in Registrant’s mark are not
sufficiently prominent or distinctive to overcome the dominance of the wording NU
VERUS. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)
(verbal portion of mark most likely to indicate origin of the goods). See also Joel Gott
Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013), citing
In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999). This is because
the verbal portion is most likely to indicate the origin of the goods, In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to
rely on this presumption) and also to be used by purchasers to request the goods,
Skincode AG v. Skin Concept AG, 109 USPQ2d 1325, 1329 (TTAB 2013); M.C.I.
Foods Inc. v. Bunte, 96 USPQ2d 1544, 1551 (TTAB 2010). Similarly, the
presentation in Applicant’s mark of the large-sized letter “V” in the shape of a plant
strongly reinforces the impression that Applicant’s mark is “NutriVerus” rather
than creating any additional association.
In support of its position that the marks at issue may co-exist, Applicant
introduced copies of third party registrations consisting in part of the terms NUTRI
and NU as well as a second term unrelated to those in either of the involved marks,
identifying dietary or nutritional supplements and/or vitamins.10 These include the
marks:
NUTRI-MEGA and NU-MEGA and design,
NUBEARS and NUTRI BEAR,

10 Id. at 17-49. All marks are in standard characters unless otherwise noted.
Serial No. 86447383

- 9 -
NU-ZYMES and NUTRI-ZYME,
NUTRIGREEN and NU-GREENS,
NUTRIBEAUTY and NUBEAUTY,
NU-HEALTH and NUTRI HEALTH,
NUTRISOURCE and NU-SOURCE,
NUTRITEK and NU-TEK, and
NUTRIPET and NU-PET.11
However, the probative value of these third-party registrations is greatly
diminished by the absence in any of them of the arbitrary term VERUS that, as
discussed above, is a dominant feature of both Applicant’s mark and the mark in
the cited registration. Simply put, while this evidence may show that the terms
NUTRI and NU may be somewhat weaker in terms of source identifying capability,
the term VERUS common to both marks at issue appears arbitrary and strong.
We find that, viewed as a whole, the similarities between the marks in
appearance, sound, connotation and commercial impression, outweigh the
dissimilarities. In view thereof, the du Pont factor of the similarity of the marks
also favors a finding of likelihood of confusion.
Conditions of Sale/Sophistication of Purchasers
With regard to the conditions of sale, Applicant argues that
Each party sells their respective goods through distributors/sponsors
via a multi-level marketing program, consumers are well educated in
the source of the goods as well as the product lines prior to making a

11 Applicant further made of record copies of third-party registrations for NU and NUTRI
formative marks for goods unrelated to those at issue herein.
Serial No. 86447383

- 10 -
purchase. The decision to purchase these goods is not made in haste,
thus greatly reducing the likelihood of confusion. The procurement of
these goods requires considerable thought, research, and deliberation
as the consumer is making a conscious effort to improve their health.12

However, Applicant has submitted no evidence in support of these contentions. The
Examining Attorney, on the other hand, has submitted evidence that goods similar
to those offered by Applicant and Registrant are available for between $12 and $40,
with a few outliers priced between $60 and $85.13 These goods are neither
prohibitively expensive nor intrinsically complex or technical in nature, and there is
nothing in the record to support a finding that they will only be purchased by
careful consumers possessing specialized knowledge or exercising a heightened
degree of care. Therefore, the standard of care for our analysis is that of the least
sophisticated purchaser. Alfacell Corp. v. Anticancer, Inc., 71 USPQ2d 1301, 1306
(TTAB 2004). Even if we accept, arguendo, that purchasers of nutritional
supplements may take greater care purchasing such goods, the record does not
support a finding that such care outweighs the other du Pont factors.
Summary
We have considered the du Pont factors for which Applicant and the Examining
Attorney have provided arguments or evidence. The rest we treat as neutral. Based
upon the evidence in this case, including any evidence not specifically discussed
herein, we find that the goods are identical in part, that the restricted trade
channels and classes of consumers of Applicant’s goods are encompassed by the

12 Id. at 20.
13 December 12, 2015 denial of Applicant’s request for reconsideration at 14-23.
Serial No. 86447383

- 11 -
unrestricted trade channels and classes of consumers of Registrant’s identical
goods, and that the marks, considered as a whole, are more similar than dissimilar.
Any sophistication of consumers in their purchasing decisions are outweighed by
the in part identical goods, trade channels and consumers, and similar marks.
Decision: The refusal to register based on a likelihood of confusion under Section
2(d) of the Trademark Act is affirmed.