No. 87106240 (T.T.A.B. Jun. 13, 2018)

Nutra Pharma Corporation

Trademark Trial and Appeal BoardJun 13, 2018

No. 87106240 (T.T.A.B. Jun. 13, 2018)

This Opinion is not a Precedent of the TTAB Mailed: June 13, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Nutra Pharma Corporation _____ Serial No. 87106240 _____ Robert J. Makar of Legalforce RAPC Worldwide P.C., for Nutra Pharma Corporation. Linda Orndorff, Trademark Examining Attorney, Law Office 111, Robert L. Lorenzo, Managing Attorney. _____ Before Adlin, Goodman and Coggins, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: Nutra Pharma Corporation (“Applicant”) seeks registration on the Principal Register of the mark PET PAIN-AWAY (in standard characters) for “Homeopathic drugs for the treatment of pain and inflammation in companion animals” in International Class 5.1 1 Application Serial No. 87106240 was filed on July 16, 2016, based upon Applicant’s claim of first use anywhere on May 1, 2015 and use in commerce since at least as early as December 15, 2015. “Pet” is disclaimed. Serial No. 87106240 - 2 - 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), on the ground that Applicant’s mark so resembles the registered mark DOG PAIN AWAY (standard characters) for “Dietary supplements for pets” in International Class 5 as to be likely to cause confusion, mistake or deceive.2 After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. I. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on likelihood of confusion. 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., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). 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). To the extent that any other du Pont factors for which no evidence was presented may nonetheless be applicable, we treat them as neutral. Page references to the application record refer to the online version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal refer to the Board’s TTABVUE docket system. 2 Registration No. 3492048 issued August 26, 2008, Section 8 & 15 affidavit accepted and acknowledged; renewed. “Dog” is disclaimed. Serial No. 87106240 - 3 - A. The similarity or dissimilarity and nature of the goods We turn first to the du Pont factor regarding the similarity or dissimilarity of the goods, which must be determined on the basis of the goods as set forth in the application and the cited registration. Octocom Sys. Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In comparing the goods, it is not necessary that they be identical or even competitive in nature in order to support a finding of likelihood of confusion. The goods need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Registrant’s goods are “Dietary supplements for pets.” Applicant’s goods are “Homeopathic drugs for the treatment of pain and inflammation in companion animals.” Applicant’s specimen describes its goods as “pain relieving products [that] could provide prolonged chronic muscle and joint relief” for pets and states that it provides relief from hip dysplasia, arthritis and joint pain, and general chronic pet pain, also providing temporary relief for “inflamed joints in dogs and cats.” 3 The product appears to be in gel form that is dispensed in pea-sized amounts.4 Applicant’s label shows a dog and cat on the packaging: 3 Specimen, p. 2. 4 Id. Serial No. 87106240 - 4 - .5 The Examining Attorney argues that the goods are related because they both may be used to treat pain in animals. The Examining Attorney has provided website evidence from the Petco (Petco.com), Petsmart (petsmart.com), and Walmart (Walmart.com) websites showing that each offers homeopathic remedies for pets and dietary supplements for pets.6 The evidence establishes that some pet dietary supplements provide pain relief. For example, the pet dietary supplements on the Walmart webpages include some intended for animal hip and joint health. One product’s description states “when pets slow down it can be due to uncomfortable joint issues. Hip and joint from Pet’s Natural’s is a complete joint formula that provides essential nutrients for healthy joints.”7 Other dietary supplements on these pages are described as being for “mobility, cartilage and joint health support,” “targeted joint support” or as “hip and joint” or “joint” supplements for dogs and cats.8 The Petco webpages include pet dietary supplements for hip and joint support as well as dietary 5 Specimen, p. 1. 6 May 11, 2017 Office Action, pp. 2-3, 8-10, 43-48, 53-58. 7 Id. at 47. 8 Id. at 43, 45, 47, 48. Serial No. 87106240 - 5 - supplements for aches and discomfort.9 The Petsmart webpages offer pet dietary supplements for joint health and senior mobility support.10 In addition, the record reveals that both pet dietary supplements and pet homeopathic drugs are offered in various forms, including chewable, liquid, gel, powder, and tablet. See the following examples: 11 12 13 9 Id. at 52-58. 10 Id. at 2-3, 9-10. 11 Id. at 53. 12 Id. at 54. 13 Id. at 51-52. Serial No. 87106240 - 6 - 14 15 16 17 18 14 Id. at 45. 15 Id. at 52. 16 Id. at 54. 17 Id. at 3. 18 Id. at 39. Serial No. 87106240 - 7 - 19 Applicant argues that there is no third-party registration evidence to show that pet homeopathic remedies and pet dietary supplements emanate from the same sources under the same marks, and that the website evidence is not probative and is insufficient to establish relatedness. However, the website evidence reflects the relatedness of the goods in that “dietary supplements for pets” encompasses dietary supplements intended to treat pain and inflammation and to support joint health which shows that Applicant’s and Registrant’s goods as identified may serve a similar purpose in providing pain relief. The website evidence also reveals little, if any, difference between how pet dietary supplements and pet homeopathic drugs are packaged, sold, dispensed or used. This belies Applicant’s argument that the goods are facially distinct. Both Applicant and Registrant have identified goods that may provide pain relief for pets, and whether referred to as “homeopathic drugs” or “dietary supplements” the record reveals that the goods are substantially similar. We find that homeopathic drugs for the treatment of pain and inflammation in companion animals and dietary supplements for animals are closely related products. At any rate, the question is not whether purchasers can differentiate the goods 19 Id. at 10. Serial No. 87106240 - 8 - themselves, but rather whether purchasers are likely to confuse the source of the goods. Alfacell Corp. v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB 2004).20 This du Pont factor favors a finding of likelihood of confusion. B. The similarity or dissimilarity of likely-to-continue trade channels We turn next to the related du Pont factor focusing on the similarity or dissimilarity of established, likely-to-continue trade channels. Although both Applicant’s and Registrant’s goods are limited to use by animals (specifically pets or companion animals), they are not limited as to trade channels, so we must presume that the goods move through all normal channels of trade for such products and that the goods are available for purchase by all the usual purchasers. See Octocom Sys., 16 USPQ2d at 1787. We do not require evidence to know that goods for pets are sold in pet stores, and the Examining Attorney’s evidence bears this out. Applicant states that its goods are sold primarily to veterinarians, while the cited mark covers products sold primarily to consumers. Applicant further submits that even if both goods could be considered to be in the “wellness industry” they operate 20 Applicant also submits that the pet store website evidence is of little probative value as it does not display homeopathic remedies and supplements under the same keyword search, and the Walmart website evidence is not probative because it is a store that carries a variety of goods. However, we have no evidence that Applicant’s and Registrant’s products typically would be displayed in different sections of a pet store or pet department, and even if that were so, that fact alone “does not gainsay a likelihood of confusion. . . . The crucial question here is whether source confusion is likely. As to that, whether or not the goods are displayed close together or far apart in the same store is immaterial.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 n.30 (TTAB 1989) (citing In re Cosmetically Yours, Inc., 171 USPQ 563, 565 (TTAB 1971)). Additionally, to the extent that Applicant has relied upon the line of cases that state that the mere fact that two different items can be found in a mass merchandise store is not a sufficient basis for a finding that the goods are related, in this case the other evidence of record clearly supports our finding that the goods are related. Serial No. 87106240 - 9 - in non-overlapping portions of that industry. Applicant also argues that there is no evidence that the goods at issue travel in the same trade channels, nor is there evidence that they are used by the same classes of consumers in the same fields of use. However, neither Registrant’s nor Applicant’s identification of goods contains limitations as to any particular purchasers or any particular segment of the pet wellness industry or field of use, and therefore we must presume that the goods are sold in all normal channels of trade. See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958)). We further find based on the identifications of goods and the evidence of record that the goods are not only closely related, but they also travel in overlapping channels of trade. The website evidence is probative of how a consumer might encounter the goods on the websites. A potential purchaser using a search for “homeopathic” or “supplements,” on the Petco and Petsmart pet store websites could view pet supplements and pet homeopathic remedies which have similar or identical purposes, packaging and dispensing methods and could select any of those products for purchase. Similarly, at the Walmart “pets department” portion of the website, a keyword search of “pet supplements” shows pet supplements and at least one homeopathic drug (described as a “safe natural medicine”) for purchase. 21 This du Pont factor also favors a finding of likelihood of confusion. 21 May 11, 2017 Office Action, p. 48. The homeopathic remedy relates to skin and itch irritation. Serial No. 87106240 - 10 - C. The similarity or dissimilarity of the marks We analyze “the marks 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) (quoting 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 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., 101 USPQ2d at 1721 (quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Johann Maria Farina Gegenuber Dem Julichs-Platz v. Chesebrough-Pond, Inc., 470 F.2d 1385, 176 USPQ 199, 200 (CCPA 1972); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). While the marks must be considered in their entireties, including any disclaimed matter, it is nevertheless appropriate, for rational reasons, to regard certain features of the marks as being more dominant or otherwise significant, and therefore to give those features greater weight. Stone Lion Capital Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The marks in this case are PET PAIN-AWAY and DOG PAIN AWAY. The marks are similar because they both contain identical terms PAIN-AWAY/PAIN AWAY. The Serial No. 87106240 - 11 - hyphen in Applicant’s mark does not meaningfully distinguish it. See Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ 485, 489 n.4 (TTAB 1978) (“Fast-Finder” with hyphen is in legal contemplation substantially identical to “Fastfinder” without hyphen). The marks differ inasmuch as one contains the disclaimed term PET while the other contains the disclaimed term DOG, which is encompassed in connotation by Applicant’s term PET. Although Applicant argues that PAIN-AWAY/PAIN AWAY are “suggestive in the context of the relevant products, and unlikely to be viewed as indicating a single source by relevant consumers,”22 it is more likely that consumers will perceive an arbitrary or suggestive term, rather than a descriptive or generic term such as DOG or PET, as the dominant source-indicating feature of the mark. See In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (affirming Board’s finding that “DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE). We find the common term PAIN- AWAY/PAIN AWAY in both marks would be the strongest source-identifying element as PET and DOG merely describe, or are generic for, the intended users of Applicant’s and Registrant’s goods. While PAIN AWAY is obviously not conceptually strong, the important point in this case is that Applicant’s and Registrant’s marks both include the term, in the same position. 22 4 TTABVUE 10. Serial No. 87106240 - 12 - Regarding the meaning of the marks, PET is defined as “an animal or bird that you keep in your home and take care of,”23 while a dog is a specific type of domesticated animal or pet. Although we find that the marks’ meanings are not necessarily identical, because one mark suggests that it eliminates pain in dogs, while the other mark suggests pain relief for pets generally (which in many cases may include dogs), this at best slight difference in meaning may at most help customers distinguish the version of the products, but not their sources. In fact, many consumers are likely to view PET PAIN-AWAY as a different version of DOG PAIN AWAY that can be given to dogs as well as other “companion animals” and may well assume that the products come from the same source. See e.g., In re S. Belle Frozen Foods Inc., 48 USPQ2d 1849 (TTAB 1998) (“Shrimp Royale” and “Seafood Royale” are marks with similar commercial impressions, and consumers may conclude that “Seafood Royale” is a new line of seafood from maker of “Shrimp Royale” product). Notwithstanding the relatively minor differences in appearance and pronunciation, and barely perceptible difference in meaning, we find that as applied to closely related goods, the marks PET PAIN-AWAY and DOG PAIN AWAY engender similar overall commercial impressions. See e.g., The Andrew Jergens Co. v. Sween Corp., 29 USPQ 394 (TTAB 1986) (“Gentle Touch” and “Kind Touch” have similar commercial impressions in connection with closely related goods). Overall we find the marks in their entireties are quite similar. This factor also strongly favors a finding of likelihood of confusion. 23 October 28, 2016 Office Action, p. 4. Macmillan Dictionary, Macmillan.com. Serial No. 87106240 - 13 - D. The number and nature of similar marks in use on similar goods This du Pont factor looks at the “number and nature of similar marks on similar goods.” Du Pont, 177 USPQ at 567. Applicant has provided evidence of third-party registrations which incorporate the terms PAIN and AWAY, arguing that the PAIN AWAY portion of Registrant’s mark is weak and the widespread use of these terms make it likely that consumers will be able to distinguish between PAIN AWAY marks.24 The registrations are as follows: Registration No. Mark Goods 1881813 Oral analgesics 1911962 SPRAY THE PAIN AWAY Analgesic spray for external use 2343862 ICY TO DULL THE PAIN AND HOT TO RELAX IT AWAY Topical analgesics 2162036 PAINZAWAY Nutritional supplements in capsule form 2460295 WIPE AWAY PAIN First aid preparations 4399480 Herbal topical cream, gels, salves, sprays, powder, liniment and ointments for the relief of aches and pain 24 One of the identified registrations, Registration No. 3298745, cancelled. Serial No. 87106240 - 14 - 4765701 MYPAINAWAY Homeopathic pharmaceuticals for use in the treatment of arthritis, back pain, bruises, bursitis, fibromyalgia, minor burns, sciatica, scrapes, sprains, strains, tendonitis, carpal tunnel syndrome; topical analgesic creams The problem with Applicant’s argument is that the identified third-party registrations that include the term PAIN AWAY and that cover analgesics, creams and ointments, first aid preparations, and nutritional supplements are intended for human use. The only PAIN AWAY marks for pet products about which we have evidence of record are Applicant’s and Registrant’s. In other words, there is no basis upon which to conclude that consumers of pet products have learned to distinguish between PAIN AWAY marks because according to the record, Applicant and Registrant own the only ones currently in use. This du Pont factor is neutral. E. The conditions under which and buyers to whom sales are made As to the du Pont factor focusing on the conditions under which and buyers to whom sales are made, Applicant’s arguments are premised on the assumption that pet owners are sophisticated purchasers who treat pets as members of their families Serial No. 87106240 - 15 - and take great care in selecting pet food and supplements.25 Applicant also argues that veterinarians are highly educated and knowledgeable medical professionals who would prescribe Applicant’s products. We agree that pet owners and veterinarians who purchase pet supplements and homeopathic drugs would exercise care in the purchase of these products. Cf. Miles Labs. Inc. v. Naturally Vitamin Supplements Inc., 1 USPQ2d 1445, 1451 (TTAB 1986), (“[w]e agree with applicant … that purchasers of vitamins are likely to exercise special care in making their product selections.”). This du Pont factor slightly favors Applicant. F. Actual Confusion Applicant argues that there is no evidence of any actual confusion and that there has been concurrent use for two years. We accord little weight to Applicant’s contention, unsupported by any evidence, that there have been no instances of actual confusion despite contemporaneous use of the respective marks. See In re Majestic Distilling, 65 USPQ2d at 1205. We find this du Pont factor neutral. G. Extent of Potential Confusion Applicant also argues that “the extent of potential confusion between the marks in this case is de minimis because of the limited number of overlapping potential purchasers of the parties’ goods and services, and their sophistication.”26 We have 25 4 TTABVUE 20; April 20, 2017 Response to Office Action pp. 14-17. 26 4 TTABVUE 25. Serial No. 87106240 - 16 - addressed these arguments under du Pont factors three and four. We find this du Pont factor neutral. II. Conclusion In conclusion, because of the similar marks, the closely related goods and the overlapping trade channels, we find that purchasers familiar with Registrant’s goods offered under the mark DOG PAIN AWAY are likely to believe, upon encountering Applicant’s mark PET PAIN-AWAY for the goods identified in its application, that they originate with or are somehow associated with the same source. While purchaser sophistication weighs slightly in Applicant’s favor, it is not sufficient to outweigh our findings on the other du Pont factors. Decision: The refusal to register Applicant’s mark PET PAIN-AWAY is affirmed.