Neolife International, LLCv.Liquivita, LLC

Trademark Trial and Appeal Board

May 3, 2019

91233147 (T.T.A.B. May. 3, 2019)

Mailed: May 3, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Neolife International, LLC
v.
Liquivita, LLC
_____

Opposition No. 91233147
_____

Charles R. Cypher of Law Offices of James R. Cypher,
for Neolife International, LLC.

Miriam Richter of Richter Trademarks PL,
for Liquivita, LLC.
_____

Before Wolfson, Kuczma, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Applicant, Liquivita, LLC, seeks registration on the Principal Register of the mark
depicted below:1

1 Serial No. 87047285 was filed May 23, 2016 on the basis of Applicant’s allegation of a bona
fide intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b). The description of the mark reads: “The mark consists of the term ‘LIQUIVIDA’
above the term ‘LOUNGE’ with the letters ‘I’,’V’ in ‘LIQUIVIDA’ being in bold font; the
foregoing is all under a stylized image of a water droplet with two diagonal lines contained
within; all surrounded by a square.” Color is not claimed as a feature of the mark.
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91233147
- 2 -

for
Medical services; Medical testing for diagnostic or
treatment purposes; Providing medical information in the
field of health and wellness, nutraceutical therapy and
nutrient IV therapy; Medical hydration clinic services,
namely, providing intravenous hydration, intravenous
electrolyte replacement therapy, intravenous vitamin and
amino infusion therapy, intravenous free radical reduction
therapy, intravenous fluid cleansing therapy, intravenous
hangover alleviation therapy, supplemental oxygen
therapy, and massage therapy; Providing medical
information, consultancy and advisory services; Vitamin
therapy; Mobile medical hydration clinic services, namely,
providing intravenous hydration, intravenous electrolyte
replacement therapy, intravenous vitamin and amino
infusion therapy, intravenous free radical reduction
therapy, intravenous fluid cleansing therapy, intravenous
hangover alleviation therapy, supplemental oxygen
therapy, and massage therapy
in International Class 44. Applicant disclaimed the exclusive right to use the word
“Lounge.”
Neolife International, LLC (“Opposer”) opposed registration of the mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the basis of alleged
Opposition No. 91233147
- 3 -
likelihood of confusion with its registered mark LIQUI-VITE (in typed form2) for
“multivitamin dietary food supplement” in International Class 5.3 Applicant denied
the salient allegations in Opposer’s notice of opposition.4
We sustain the opposition.
I. EVIDENTIARY ISSUES
Opposer, in its first Notice of Reliance, introduced Exhibits M and N, containing
copies of the prosecution history files for Applicant’s earlier-filed applications, Serial
No. 862650145 for the mark and Serial No. 862650026 for the mark
LIQUIVITA (in standard characters).7 In its second Notice of Reliance, Opposer

2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until
2003, ‘standard character’ marks formerly were known as ‘typed’ marks.”).
3 Reg. No. 1526499, issued February 28, 1989, renewed.
Because Opposer did not pursue, in its brief, its claim of lack of bona fide intent to use the
mark or its claim that Applicant is not the owner of the mark, these asserted claims have
been waived. See TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1100-01 (TTAB 2018);
Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1426 n.3 (TTAB 2013)
(claim not argued in brief is considered waived).
4 Applicant also asserted that “Opposer is not the owner of the trademark of the LIQUI-VITE
registration,” 6 TTABVUE 4, but did not file a timely counterclaim or petition to cancel the
registration. The Board will not entertain the unsupported allegation as it constitutes an
improper collateral attack on Opposer’s pleaded registration. See Nasalok Coating Corp. v.
Nylok Corp., 522 F.3d 1320, 86 USPQ2d 1369, 1373 n.3 (Fed. Cir. 2008) (invalidity of a
registration pleaded in an opposition proceeding is a compulsory counterclaim under
Trademark Rule 2.106(b)(2)(i)).
5 10 TTABVUE 5-128.
6 10 TTABVUE 129-183.
7 Both applications are presently abandoned.
Opposition No. 91233147
- 4 -
introduced as Exhibits S-W, printouts from the websites www.liquividalounge.com8
and https://eastwest-physicians.myshopify.com/.9
Applicant objects to Opposer’s Exhibits M, N, and S-W on the ground of hearsay,
stating, “While printed publications and website pages maybe submitted under a
Notice of Reliance, they may not be used for the truth of the matters asserted therein.
Applicant objects to all these websites and articles as hearsay and moves to strike
any reliance on their content.” 29 TTABVUE 7.
Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2) provides for the admission of
Internet materials under Notice of Reliance “so long as the date the internet
materials were accessed and their source (e.g., URL) are provided.” The website pages
introduced by Opposer are dated and provide the URL indicating the source for each
site. As such, they are admissible, but solely for what they show on their face and not
to prove the truth of any matter stated therein. This has been established Board
practice for the better part of a decade with respect to Internet printouts, and for at
least several decades with respect to printed publications. See Safer Inc. v. OMS Inv.
Inc., 94 USPQ2d 1031, 1037 n.14 and 1040 (TTAB 2010); see also WeaponX
Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038
(TTAB 2018); 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1717 n.2 (TTAB
2007) (materials made of record by notice of reliance under 37 C.F.R. § 2.122(e) not
admissible for the truth of the matters contained therein, unless a competent witness

8 Exhibits S, T and W, 25 TTABVUE 20-26 and 40-41.
9 Exhibits U and V, 25 TTABVUE 27-39.
Opposition No. 91233147
- 5 -
has testified to the truth of such matters). Accordingly, we consider the contents of
the admitted web pages not for the truth of the matters asserted therein, but instead
for what they show about the publications’, authors’, and consumers’ perceptions, and
what people are reported to have said about Opposer’s and Applicant’s goods or
services.
Applicant also objects to Exhibits M and N as containing copies of third-party
registrations and Internet materials that were produced during the prosecution of
Applicant’s earlier-filed applications. Because they were not submitted by way of
testimony, Applicant contends these materials do not form part of the record herein.
Trademark Rule 2.122(e)(1), 37 C.F.R. § 2.122(e)(1), provides that official records
may be introduced by notice of reliance and are considered self-authenticating.
Calypso Tech., Inc. v. Calypso Capital Mgmt., LP, 100 USPQ2d 1213, 1217 (TTAB
2011); cf. Weight Watchers Int’l, Inc. v. I. Rokeach & Sons, Inc., 211 USPQ 700, 702
n.5 (TTAB 1981) (taking judicial notice of official records where relevance is clear
from record and briefs); see also TBMP § 704.07 (June 2018) and authorities cited in
that section. Accordingly, we have considered the copies of third-party registrations
and Internet materials contained in the official records comprising Exhibits M and
N. We accord them limited probative value however, given that they are at least four
years old; moreover, the websites are only admissible for what they show on their
face.
II. THE RECORD
The record includes the pleadings, and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the subject application. The record also includes:
Opposition No. 91233147
- 6 -
A. Opposer’s Testimony and Evidence
1. The testimony declaration of Opposer’s Vice President and General
Counsel, Douglas Graham, with Exhibits A-L (“Graham test.”).10
2. Notices of Reliance11 on:
a. Exhibit M – File history of Serial No. 86265014 for the mark:12

b. Exhibit N – File history of Serial No. 86265002 for the mark
LIQUIVITA (in standard characters);13

c. Exhibit O – Decision of the TTAB in re Serial No. 86265014, dated May
20, 2016;

d. Exhibit P – Excerpt from Dictionary.com for “vite” and from Merriam-
Webster’s SpanishCentral.com for “vida.”14

e. Exhibit Q – Applicant’s Request for Reconsideration in 86265014;15

f. Exhibit R – Applicant’s Responses to Opposer’s First Set of
Interrogatories;16

g. Exhibit S – LiquIVida Lounge advertisement;17

10 16 TTABVUE. Citations to material or testimony in the record are to the TTABVUE docket
entry number and, as applicable, the TTABVUE page number. See Turdin v. Trilobite, Ltd.,
109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
11 Opposer’s first Notice of Reliance was submitted at 10 TTABVUE. Opposer submitted its
second Notice of Reliance twice, once at 25 TTABVUE and again at 27 TTABVUE.
12 10 TTABVUE 5-128.
13 10 TTABVUE 129-183.
14 10 TTABVUE 199-2 02.
15 25 TTABVUE 8-11.
16 25 TTABVUE 12-19.
17 25 TTABVUE 20-22.
Opposition No. 91233147
- 7 -
h. Exhibit T –LiquIVida Lounge advertisement;18

i. Exhibit U – East West Physicians advertisement;19

j. Exhibit V –East West Physicians advertisement;20

k. Exhibit W – Web page from http: //www.liquividalounge.com.21

B. Applicant’s Evidence
1. The testimony declarations of:
a. Samael Tejada, Applicant’s President and Founder;22
b. Emmanuel Trenche, Applicant’s Chief Marketing Officer;23
c. Howard Newman, owner of LiquIVida Lounge in Coconut Creek,
Florida;24
d. Jeff Cogswell, Applicant’s Director of Sales, US Market;25
e. Hugo Tabares, co-founder and Executive Producer at Trifecta
Marketing, which provides advertising and marketing services to
Applicant;26 and
f. Christopher “Briana” McNamara, owner of LiquIVida Lounge in
Malibu, California.27
2. Notices of Reliance on:

18 25 TTABVUE 23-26.
19 25 TTABVUE 28-35.
20 25 TTABVUE 36-39.
21 25 TTABVUE 40-41.
22 19 TTABVUE 4-7.
23 19 TTABVUE 8-9.
24 19 TTABVUE 10.
25 19 TTABVUE 11.
26 19 TTABVUE 12.
27 19 TTABVUE 13.
Opposition No. 91233147
- 8 -
a. Opposer’s Responses to Applicant’s First Set of Interrogatories and
Request for Production of Documents;28 and

b. Excerpts from the discovery deposition of Douglas Graham, taken
March 6, 2018.29

III. STANDING AND PRIORITY
Because Opposer has properly made its pleaded registration for the mark
LIQUI-VITE of record, showing Opposer as owner and that the registration is valid
and subsisting,30 Opposer has established its standing. Empresa Cubana Del Tabaco
v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014); see also
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189
(CCPA 1982). For the same reason, Section 2(d) priority is not at issue in this case as
to the mark and the goods covered by the registration. King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). Applicant
acknowledged in its brief that Opposer has a valid registered mark. 29 TTABVUE 23.

28 20 TTABVUE. Confidential version at 23 TTABVUE. Immediately following each
interrogatory, Applicant requested all documents supporting Opposer’s answer. However, the
only responses to document requests we may consider as evidence are responses which state
that no responsive documents exist. See TBMP § 704.11 and authorities cited in footnote 10
of that section. Accordingly, documents produced in response to Applicant’s document
production requests, and not otherwise properly introduced, have not been considered. See
United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1044 (TTAB 2014); Trademark
Rule 2.120(k)(3)(ii), 37 C.F.R. 2.120(k)(3)(ii).
29 21 TTABVUE. Applicant submitted its second Notice of Reliance twice, once at
21 TTABVUE and again at 24 TTABVUE.
30 Graham test., 11 TTABVUE 6-7; Exhibits A-J, id. at 16-37.
Opposition No. 91233147
- 9 -
IV. LIKELIHOOD OF CONFUSION
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the 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). “Not all of the DuPont factors are relevant to every case, and only
factors of significance to the particular mark need be considered.” Zheng Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (citing
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods or services. In re Chatam Int’l Inc., 380
F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). In addition, we
address the trade channels of distribution, the classes of consumers and the
conditions under which sales are made, i.e., “impulse” vs. careful, sophisticated
purchasing, and any evidence of actual confusion. We have considered all of the
arguments and evidence of record, including any matters not expressly discussed.
A. Similarity of the Marks
We begin our likelihood of confusion analysis with a consideration of the
similarity or dissimilarity of the marks at issue in “their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (citing du Pont, 177 USPQ at 567). “The proper test is not a side-by-
side comparison of the marks, but instead whether the marks are sufficiently similar
Opposition No. 91233147
- 10 -
in terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Zheng Cai, 127 USPQ2d
at 1801; In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017);
Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012).
Applicant has applied to register the mark . Opposer’s mark is LIQUI-
VITE. The marks are similar in appearance and pronunciation because they share a
common structural component: an initial coined term comprised of the letters
“LIQUI,” followed by visually and aurally similar endings: “-VIDA” and “-VITA.”
Applicant argues that “while the word LIQUIVIDA is larger and is more
prominent in Applicant’s mark as a whole, it is impermissible to completely discount
the word LOUNGE and the design element of the water drop, as Opposer does.”31 We
agree the marks must be considered in their entireties. Nonetheless, “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 Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). Here, the term “LIQUIVIDA” in Applicant’s
mark is the dominant portion of the mark for two reasons. First, the term
LIQUIVIDA is presented in large lettering, centered, and contains bolded letters,

31 29 TTABVUE 11.
Opposition No. 91233147
- 11 -
whereas the word “Lounge” is in smaller letters, merely describes the services32 and
has been properly disclaimed. See Nat’l Data, 224 USPQ at 751 (“That a particular
feature is descriptive or generic with respect to the involved goods or services is one
commonly accepted rationale for giving less weight to a portion of a mark.”); see also
In re Chatam, 71 USPQ2d at 1946 (finding descriptive term “offer[s] little to alter the
commercial impression of the mark”). Second, the water drop design takes the place
of the “dot” over the letter “I,” thereby emphasizing the word LIQUIVIDA; being
representative of a drop of water, the design evokes the hydration aspect of
Applicant’s services. Moreover, when marks comprise words and designs, the words
generally dominate because they are more likely to be impressed upon a purchaser’s
memory and to be used when requesting the goods or services. 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)); see also In re Viterra Inc., 101
USPQ2d at 1908 (“In the case of a composite mark containing both words and a
design, ‘the verbal portion of the mark is the one most likely to indicate the origin of
the goods to which it is affixed.’”) (internal citations omitted).
Although Opposer’s mark contains a hyphen, it is barely noticeable. To the extent
it causes a buyer to delineate the term LIQUI from VITE when pronouncing the
mark, this is similar to the effect on the pronunciation the bolding in Applicant’s mark
may have – to serve as a pronunciation guide and cause an aural “stop” between the

32 ‘The word LOUNGE in Applicant’s mark directly conveys to consumers a location for the
services that Applicant is offering under the mark.” Applicant’s Brief, 29 TTABVUE 12.
Opposition No. 91233147
- 12 -
LIQUI and the VIDA terms.33 Moreover, Opposer’s mark is in standard characters
and may appear in the same font style as Applicant’s, that is, with the letters “I” and
“V” set off in bold. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1187 (TTAB
2018).
In connotation and overall commercial impression, the marks evoke similar
meanings. Because Opposer’s goods are liquid multivitamin supplements, Opposer’s
mark brings to mind the concept of “liquid vitamins.” Applicant’s mark evokes a
similar image, that of a location for obtaining liquid (hydration) therapy, such as
vitamin therapy. The bold letters “IV” in Applicant’s mark also reflect the
intravenous (fluid) nature of Applicant’s provision of, e.g., “intravenous fluid
cleansing therapy” and “intravenous vitamin and amino infusion therapy.” To the
extent the terms “VITE” and VIDA” would be perceived as foreign words, the term
“vite” in Opposer’s mark means “brisk, lively”34 whereas “vida” is the Spanish
language equivalent of the word “life.”35 Altogether, the marks look and sound alike
and have similar connotations and overall commercial impressions.
The first du Pont factor favors a finding of likelihood of confusion.

33 Although visually, the bolding of the letters IV in Applicant’s mark may call attention to
the fact that Applicant’s nutrients are delivered intravenously, nonetheless, the marks as a
whole are similar both visually and aurally.
34 Dictionary.com, 10 TTABVUE 200, Exhibit P.
35 Merriam-Webster’s SpanishCentral.com. website, 10 TTABVUE 202.
Opposition No. 91233147
- 13 -
B. Opposer’s Goods and Applicant’s Services
Opposer produces a “multivitamin dietary food supplement” that it sells through
individual distributors under the trademark LIQUI-VITE.36 Applicant’s services
include broadly worded services, such as “medical services,” “medical testing for
diagnostic or treatment purposes,” and “providing medical information, consultancy
and advisory services.” More specifically, Applicant’s services include “medical
hydration clinic services, namely, providing…intravenous vitamin and amino
infusion therapy,” “providing medical information in the field of health and wellness,
nutraceutical therapy and nutrient IV therapy” and simply, “vitamin therapy.” Thus,
Applicant’s services include therapies that administer vitamins intravenously to
customers.37
Vitamins are among the primary ingredients advertised as being in Opposer’s
LIQUI-VITE supplement, as can be seen from the following advertisement:38

36 Graham test., 11 TTABVUE 5.
37 We take judicial notice of the Merriam-Webster online dictionary definition of
“nutraceutical”: “a foodstuff (such as a fortified food or dietary supplement) that provides
health benefits in addition to its basic nutritional value.” At https://www.merriam-
webster.com/dictionary/nutraceutical, accessed April 25, 2019. The Board may take judicial
notice of definitions from dictionaries, including online dictionaries that exist in printed
format or have regular fixed editions. E.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100,
1104 n.9 (TTAB 2018); In re Inn at St. John's, LLC, 126 USPQ2d 1742, 1747 n.15 (TTAB
2018); In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1953 n.2 (TTAB 2018).
38 Graham test., Exhibit K, 11 TTABVUE 40.
Opposition No. 91233147
- 14 -

A likelihood of confusion may arise where confusingly similar marks are used on
goods, on the one hand, and in connection with sales of such goods, on the other. See
In re Wet Seal, Inc. v. FD Management, Inc., 82 USPQ2d 1629, 1640 (TTAB 2006);
J. Thomas McCarthy, TRADEMARKS AND UNFAIR COMPETITION § 24:25 (5th ed.). Our
primary reviewing court has noted, “trademarks for goods find their principal use in
connection with selling the goods” and accordingly marks for goods and marks for the
service of selling such goods will have their impact on the purchasing public in the
same marketplace. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025
(Fed. Cir. 1988) (furniture and general merchandise store services); see also INB Nat’l
Opposition No. 91233147
- 15 -
Bank v. Metrohost, Inc., 22 USPQ2d 1585, 1587-1588 (TTAB 1992) (banking services
and credit cards); Steelcase, Inc. v. Steelcare, Inc., 219 USPQ 433, 435 (TTAB 1983)
(furniture and furniture refinishing). As shown by the above, Applicant’s services are
related to Opposer’s multivitamin dietary food supplements.
Applicant’s advertising further supports the relatedness of the goods and services.
Applicant refers to itself as a “vitamin infusion center”39 and advertises its services,
including its vitamin, nutraceutical and nutrient IV therapies, online at
www.liquividalounge.com. In its advertising, Applicant lists “High-dose vitamin C,”
“Vitamin D shots,” and “B-complex shots” among its advertised services:40

39 27 TTABVUE 25.
40 At http:/www.liquividalounge.com/locations/vitamin-iv-therapy-spa-in-coconut-creek-
florida. 27 TTABVUE 24, Exhibit T.
Opposition No. 91233147
- 16 -

The Internet evidence and third-party registrations introduced by Opposer under
Exhibits M and N further support a finding of relatedness of the goods and services.
These exhibits contain copies of third-party registrations and Internet evidence
demonstrating that companies that make vitamin supplements under one mark also
provide intravenous medical services under the same mark. Representative Internet
websites include:
1. Eastside Primary Care & Wellness, offering “Nutritional
IV therapy” and its own brand of vitamin D supplements.41
2. Motykie MedSpa, offering intravenous infusion
therapies and its own brand of vitamin supplements.42
3. Sonoran Naturopathic Center, offering intravenous
therapy for a variety of ailments by infusing “medicine,
nutrients, vitamins, amino acids, etc. directly into the
veins.”43 They also sell a proprietary line of supplements.44

41 Therapy offered at eriksuhmd.com, 10 TTABVUE 30 and vitamins offered at
store.eriksuhmd.com, 10 TTABVUE 31.
42 Therapies offered at www.motykiemedspa.com/wellness/iv-therapy/, 10 TTABVUE 32 and
vitamins offered at www.motykiemedspa.com/discovery-dr-motykies-line-vitamin-
supplements/, 10 TTABVUE 33.
43 At sncaz.com/services/iv-therapy/, 10 TTABVUE 34.
44 At sncaz.com/services/supplements/, 10 TTABVUE 35.
Opposition No. 91233147
- 17 -
4. The Riordan Clinic, offering vitamin injection services45
and its own brand of “C-1000 (Vitamin C).”46
5. Visions HealthCare, offering intravenous therapy in a
lounge-type setting. “We are able to infuse a variety of
medications, fluids, vitamins, minerals and nutrients to
assist you in achieving optimal wellness.” The company
also offers supplements and herbs under the Visions
HealthCare mark.47
Opposer also introduced third-party registrations contained in Exhibits M and N
to show the goods and services are related. Third-party registrations which
individually cover a number of different items and which are based on use in
commerce may have some probative value to the extent that they serve to suggest
that the listed goods and services 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, 1934-1935 (TTAB 2012).
Representative registrations, with relevant portions of the identifications, are
listed below. These show that Opposer’s goods are related to Applicant’s vitamin
therapy services, as well as its “medical services,” “providing medical information,
consultancy and advisory services,” and “massage services.”48
Mark Reg. No. Goods/Services
LIQUIFUSION 4743562 Vitamin and mineral
supplements; intravenous

45 At http://www.riordanclinic.org/patient-care/therapies/vitamin-injections/, 10 TTABVUE
102.
46 At store.riordanclinic.org/products/, 10 TTABVUE 103.
47 At www.visionshealthcare.com.10, TTABVUE 60-62.
48 We have disregarded any registration that is presently cancelled, whether or not it was
active during prosecution of Applicant’s earlier applications.
Opposition No. 91233147
- 18 -
vitamin infusion therapy;
intravenous nutritional
therapies49

4693429 herbal supplements; food-
based botanical dietary
supplements; medical
services, namely, vitamin
therapy, vitamin
injections50
TRANSFORM YOUR
HEALTH
4468889 Nutritional supplements;
Massages; Medical
services51
PPEP 4598370 Dietary and nutritional
supplements; Medical
testing for diagnostic or
treatment purposes52
CANO HEALTH 4583713 Variety of dietary , food
and vitamin supplements;
Medical services53

4636393 Dietary supplements;
Providing a website
featuring information
about health and
wellness, namely, men’s
health and nutrition54
MIRAVITA 4363157 Dietary supplements;
Medical services55
VIDA MD 4573715 Vitamin and mineral
supplements; Vitamin
therapy56

49 10 TTABVUE 26-28.
50 10 TTABVUE 23-25.
51 10 TTABVUE 47-49.
52 10 TTABVUE 50-52.
53 10 TTABVUE 53-55.
54 10 TTABVUE 56-58.
55 10 TTABVUE 95-97.
56 10 TTABVUE 98-101.
Opposition No. 91233147
- 19 -
In this case, the evidence is sufficient to persuade us that if customers were to
make an appointment to visit Applicant’s medical hydration clinic to receive vitamin
therapy services (or intravenous vitamin and amino infusion therapy), or receive
information about nutraceutical or nutrient IV therapy, they would likely mistakenly
believe the vitamins being used came from the same source as Opposer’s LIQUI-VITE
vitamin supplements. Evidence of the parties’ use of their marks, the third-party
registrations, and the website evidence support a finding that the goods and services
are related.
The second du Pont factor regarding the similarity or dissimilarity of the goods
and services favors a finding of likelihood of confusion.
C. Channels of Trade; Classes of Purchasers
There are no limitations on trade channels or classes of purchasers in either
Applicant’s application or Opposer’s registration. Therefore, we must assume the
goods and services are sold through all the normal and usual trade channels for such
goods and services and to all usual purchasers thereof. See Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys.
Inc. v. Houston Computer Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1987).
The record supports this presumption. Both parties employ sales representatives to
procure sales from customers. Mr. Graham testified that Opposer sells through
“individual distributors who sell to consumers.”57 Mr. Trenche testified that
Applicant does a “wide range of email marketing, social media marketing, and

57 Graham test., 11 TTABVUE 5.
Opposition No. 91233147
- 20 -
personal selling through a network of roughly 50 independent contractors.”58 Both
parties also advertise over the Internet. Opposer sells over the Internet, but
Applicant does “not sell online, on Amazon, or on any eCommerce stores since all of
our services must be administered in person by qualified medical professionals.”59
The targeted classes of consumers of both Opposer’s goods and Applicant’s services
include adults who are interested in personal health and well-being.60
The third du Pont factor favors a finding of likelihood of confusion.
D. Conditions of Sale
Under the fourth du Pont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
du Pont, 177 USPQ at 567. We base our analysis “on the least sophisticated potential
purchasers,” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1163 (Fed. Cir. 2014). Circumstances suggesting care in
purchasing may tend to minimize the likelihood of confusion. du Pont, 177 USPQ at
567; In re N.A.D., Inc., 754 F.2d 996, 224 USPQ 969, 971 (Fed. Cir. 1985) (confusion
is unlikely when sophisticated purchasers are buying goods with great care).
Applicant argues that because Opposer’s supplements are suitable for children,
“the purchaser of Opposer’s goods is, most often, the parent of an infant or toddler

58 Trenche test., 19 TTABVUE 9. He also refers to Applicant’s “more than 50 independent
sales representatives.” Id.
59 Trenche test., 19 TTABVUE 9.
60 See, e.g., Graham dep., 24 TTABVUE 5: “[LIQUI-VITE] is marketed to children and adults
who prefer…to have a liquid vitamin.” See also Trenche test., 19 TTABVUE 9: “Our core
audience is the anti-aging sector.”
Opposition No. 91233147
- 21 -
purchasing the goods on their behalf,” whose level of care is “high and so is the level
of care an adult takes when choosing a provider of intravenous hydration therapy.”61
However, the record is silent regarding the level of care adults take when purchasing
vitamin therapy for themselves or vitamin supplements either for themselves or for
their children.
Even if the relevant purchasers are sophisticated or knowledgeable in selecting
liquid vitamins or intravenous vitamin therapy, it does not necessarily follow that
they are sophisticated or knowledgeable in the field of trademarks or immune from
source confusion. Stone Lion, 110 USPQ2d at 1163-64; Top Tobacco LP v. N. Atl.
Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011). Even discerning and
sophisticated purchasers are likely to be confused between the sources of related
goods and services when offered under similar marks.
The fourth du Pont factor is neutral.
E. Actual Confusion
It is undisputed that there has been no actual confusion. However, absence of any
reported instances of actual confusion is only meaningful “if the record indicate[s]
appreciable and continuous use by applicant of its mark for a significant period of
time in the same markets as those served by opposer under its marks.” Gillette
Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Here, the time
within which confusion could have arisen is not significant, as Applicant claims to

61 29 TTABVUE 20. Applicant does not market to children. Trenche test., 19 TTABVUE 9.
Opposition No. 91233147
- 22 -
have first used its mark in May, 2016.62 In any event, the test under Section 2(d) of
the Act is likelihood of confusion, not actual confusion.
We treat du Pont factor 7 (whether actual confusion has been shown) and factor 8
(whether there has been a significant opportunity for confusion to have occurred) as
neutral.
V. CONCLUSION
After considering all of the evidence made of record pertaining to the issue of
likelihood of confusion, as well as all of the arguments related thereto, including any
evidence and arguments not specifically discussed in this decision, we conclude that
confusion is likely between Applicant’s mark and Opposer’s mark LIQUI-
VITE. The goods and services are related, the trade channels and classes of
consumers overlap, and the marks are confusingly similar. The other factors we have
considered are neutral.
Decision: The opposition on the ground of likelihood of confusion is sustained.

62 Tejada test., 19 TTABVUE 4.