Michelle Kellogg

Trademark Trial and Appeal Board

Sep 30, 2018

No. 87428617 (T.T.A.B. Sep. 30, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 30, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Kellogg
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Serial No. 87428617
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Mark Borghese of Borghese Legal, Ltd.
for Michelle Kellogg
Crystal H. Yi, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Taylor, Gorowitz and Hightower,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Michelle Kellogg (“Applicant”) seeks registration on the Principal Register of the
mark MINDFUL MYSTIC (in standard characters) for
Providing vibrational energy healing services; Reiki
healing services; sound healing therapy services; providing
in-person energy healing services in International Class
44.1

1 Application Serial No. 87428617 was filed on April 27, 2017, pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as December 2015. The word “MINDFUL” has been
disclaimed.
Serial No. 87428617
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the registered mark MINDFUL + MYSTIC FOR THE MODERN
GODDESS (in standard characters), with a disclaimer of “MINDFUL” and
“MYSTIC,” for
Subscription-based order fulfillment services in the field of
new age products, consisting of products relating to yoga,
magic, spirituality, meditation, crystals, fitness, health,
including healthy food, beauty, including essential oils and
apothecary, jewelry, chakras, candles, gem-infused items
and altar items in International Class 35; and
On-line journals, namely blogs featuring information on
physical, spiritual and emotional health and self-
improvement, with topics such as yoga, recipes,
meditation, body, mind and soul awareness, mindfulness,
mysticism, chakras, beauty, laws of manifestation and of
attraction, crystal healing, holistic attitudes, life-coaching,
self-care and rituals in International Class 412
that it is likely to cause confusion or mistake or to deceive.
When the refusal was made final, Applicant appealed. We affirm the refusal to
register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).

2 Registration No. 5012056 issued on August 2, 2016.
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In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976); see also In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). These factors, and
any other relevant du Pont factors in the proceeding now before us, will be considered
in this decision.
A. Similarity of the goods and channels of trade.
We start our analysis with the second and third du Pont factors, the similarities
or dissimilarities of the services and the channels of trade. We base our analysis of
these factors on the services as they are identified in the registration and application.
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1160 (Fed. Cir. 2014); see also Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
It is not necessary that the respective services 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 and services
themselves, but rather whether they would be confused as to the source of the goods
and services. See In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The respective
services need only be “related in some manner and/or if the circumstances
surrounding their marketing [be] such that they could give rise to the mistaken belief
that [the goods and services] emanate from the same source.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
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(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see also In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed.
Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
The Examining Attorney has the burden of establishing the relationship between
the services. In support of her position, the Examining Attorney submitted copies of
over twenty use-based third-party registrations with the October 25, 2017 Office
Action,3 each of which includes both Applicant’s and the registrant’s types of services
and which serves to suggest that the services are of a kind that may emanate from a
single source.
Third-party registrations which individually cover a number of different items
and services and which are based on use in commerce may have some probative value
to the extent that they serve to suggest that alternative healing treatments, such as
Reiki and sound healing; and the sale of new age products and blogs featuring
information on physical, spiritual and emotional health are of a type which may
emanate from a single source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.6
(TTAB 2015); In re RiseSmart Inc., 104 USPQ2d 1931, 1934-35 (TTAB 2012); In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). A representative sampling of these
registrations follows:
1. Registration No. 3994512 for the mark J.O.Y.
JOURNEY OF YOU for services that include on-line
retail store services, featuring energy healing

3 October 25, 2017 Office Action, TSDR pp. 26-93.
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products, aroma therapy products in International
Class 35; and
Energy healing services, namely, therapeutic touch
services, energy healing services and in-person and
on-line vibrational energy healing services in
International Class 44 (TSDR pp. 32-33);
2. Registration No. 4051925 for the mark DIVINE
HEART CENTER for services including providing
energy healing services, namely therapeutic touch
services; providing a website featuring information
concerning alternative health and healing in
International Class 44 (TSDR pp. 41-42);
3. Registration No. 4160973 for the mark DOORWAY
TO POWER THE KEYS WITHIN (in stylized form)
for services that include mail order catalog services,
featuring new age and metaphysical themed
products, in International Class 35; and
Energy healing services in International Class 44
(TSDR pp. 47-48);
4. Registration No. 4478543 for the mark ORION
NETWORK FOR EVOLUTION for services, that
include non-downloadable electronic publications in
the nature of magazines and newsletters in the field
of healing and evolution; podcasts in the field of
healing and evolution International Class 41; and
Providing in-person and long distance vibrational
energy healing services in International Class 44
(TSDR pp. 50-52); and
5. Registration No. 44745977 for the mark ENERGY
PASSAGE for providing a website featuring a blog
in the fields of health, wellness, energy medicine and
healing, yoga, reiki … in International Class 41; and
Energy healing services; reiki healing services;
stress management and stress reduction counseling;
aromatherapy services in International Class 44
(TSDR p. 62-65).
In addition, the Examining Attorney established through website evidence that
the same entities provide both alternative healing services and blogs about
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alternative healing and/or on-line stores featuring new age products. One of the
websites of record is Applicant’s website, which is located at
www.mindfulmystic.com.4 The site references both alternative healing services, e.g.,
sound healing: and the
offering of new age products in an on-line store, examples of which are set forth below:

4 July 25, 2017 Office Action, TSDR 32-34.
Home Reiki Chakras Book Online ngel card Readings Numerology Yoga Classes
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The information on Applicant’s website, coupled with the third-party registration
evidence, is conclusive evidence of the relationship between the services identified in
the application and the goods sold by the registrant through its fulfillment services.
In addition, the Examining Attorney also introduced third-party websites on which
the owners offered alternative healing services, i.e., Reiki, blogs about alternative
health and healing and on-line stores offering related new age goods.
The following represents a sampling of these websites, which were introduced in
the October 25, 2017 Office Action: Healing Place – healingplacemedfiled.com (TSDR
12-13), OM’ECHAYE Wellness and Fitness Center – www.omechay.com (TSDR 14-
17), and Well Being massage • skincare (www/.wellbeingtahoe.com).
The evidence of record establishes that Applicant’s services are closely related to
registrant’s services and are sold in the same channels of trade. As such, the second
and third du Pont factors weigh heavily in favor of a finding of likelihood of confusion.
B. Sophistication of customers.
Applicant argues that the purchasers of her services are sophisticated. Relying on
Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492,
1503 (TTAB 2005), which holds that “even ordinary consumers tend to exercise some
sophistication when it comes to decisions relating to healthcare and health insurance
services,” Applicant contends that her services constitute alternative health care.
However, Applicant provides no evidence that the type of consumers who purchase
Applicant’s vibrational energy healing services; Reiki healing services; sound healing
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therapy services and in-person energy healing services would exercise more than
ordinary care in their purchasing decisions. Moreover, even if some of her customers
are sophisticated in their purchasing decisions, it has long been held that even
sophisticated purchasers may be confused when similar marks are used with respect
to the same goods and services. In re Cynosure Inc., 90 USPQ2d 1644, 1647 (TTAB
2009); see also In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed.
Cir. 1986).
Thus, we find that the fourth du Pont factor is neutral.
C. Similarity between the marks.
We next consider the first du Pont factor, the similarity or dissimilarity of the
marks in their entireties, and compare Applicant’s MINDFUL MYSTIC mark with
the cited mark MINDFUL + MYSTIC FOR THE MODERN GODDESS. In comparing
the marks we must consider their 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, 1692 (Fed. Cir. 2005). “The proper test is not
a side-by-side comparison of the marks, but instead ‘whether the marks are
sufficiently similar in terms of their commercial impression’ such that persons who
encounter the marks would be likely to assume a connection between the parties.”
Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721 (citation omitted).
We find that the dominant part of the cited mark is MINDFUL + MYSTIC, as it
is the first and most prominent portion of the mark. The first portion of a mark is
generally the dominant portion of the mark. See Presto Products Inc. v. Nice-Pak
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Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a
mark which is most likely to be impressed upon the mind of a purchaser and
remembered.”). See also Palm Bay v. Veuve Clicquot, 73 USPQ2d at 1692 (“Veuve” is
the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the label); Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers will first notice the identical lead
word). The only difference between Applicant’s mark and the first and dominant
portion of the cited mark, MINDFUL + MYSTIC, is the plus sign.
Applicant argues that the
separation of the words by the plus symbol (+) separates
the words into two distinct terms, which apparently
describe the product’s [sic] sold by the registrant based on
the disclaimer in the Cited Mark. Namely, products that
are both MINDFUL AND MYSTIC or products which are
MINDFUL PLUS MYSTIC.
Appeal Brief, 4 TTABVUE 9. Applicant’s mark MINDFUL MYSTIC can also connote
the “mindful and mystic” quality of Applicant’s services. We find this to be
particularly true here because in evaluating the similarities between marks, the
emphasis must be on the recollection of the average purchaser, who normally retains
a general, rather than specific, impression of trademarks. In re Cynosure, Inc., 90
USPQ2d 1644, 1645 (TTAB 2009) (citing Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975)).
Thus Applicant has essentially adopted the entire dominant portion of the
registrant’s mark, without the subordinate phrase “FOR THE MODERN
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GODDESS.” It has long been held that “the presence of an additional term does not
necessarily eliminate the likelihood of confusion is some of the terms are identical.”
In re Mighty Leaf Tea, 601 F3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)
(citingChina Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d 1123, 1125
(Fed. Cir. 2007) (the common word in CHI and CHI PLUS is likely to cause confusion
despite differences in the marks’ designs); In re West Point–Pepperell, Inc., 468 F.2d
200, 175 USPQ 558, 559 (CCPA 1972) (WEST POINT PEPPERELL likely to cause
confusion with WEST POINT for similar goods); Lilly Pulitzer, Inc. v. Lilli Ann Corp.,
376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women's
dresses is likely to be confused with LILLI ANN for women's apparel including
dresses)).
The court also discussed In re United States Shoe Corp., 229 USPQ 707, 709
(TTAB 1985) (CAREER IMAGE for women's clothing stores and women's clothing
likely to cause confusion with CREST CAREER IMAGES for uniforms including
items of women's clothing). The court referenced an observation made by the Board
in United States Shoe, namely that “Applicant's mark would appear to prospective
purchasers to be a shortened form of registrant's mark.” Mighty Leaf Tea, at 1260.
As with the cases discussed supra, Applicant’s mark MINDFUL MYSTIC would
appear to prospective purchasers to be a shortened form of registrant’s mark
MINDFUL + MYSTIC FOR THE MODERN GODDESS.
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While we acknowledge the differences in the marks at issue, we find that, in their
entireties, the similarities in the marks outweigh any dissimilarities, and thus, the
first du Pont factor favors a finding of likelihood of confusion.
II. Conclusion.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Because we have
found that the marks at issue are similar; that Applicant’s identified services are
closely related to the services in the cited registration; and that the services are sold
through the same trade channels to the same class of purchasers, we conclude that
Applicant’s mark MINDFUL MYSTIC for “providing vibrational energy healing
services; Reiki healing services; sound healing therapy services; and providing in-
person energy healing services” is likely to cause confusion with the registered mark
MINDFUL + MYSTIC FOR THE MODERN GODDESS for “subscription based order
fulfilment services in the field of new age products; and “blogs featuring information
on physical, spiritual and emotional health and self-improvement.”
Decision: The refusal to register Applicant’s mark MINDFUL MYSTIC is
affirmed.