Nutratek Health Innovations, Inc.

Trademark Trial and Appeal Board

Dec 18, 2013

No. 85577160 (T.T.A.B. Dec. 18, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: December 18, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Nutratek Health Innovations, Inc.
_____

Serial No. 85577160
_____

Matthew H. Swyers of The Trademark Company for Nutratek Health Innovations,
Inc.

Linda M. Estrada, Trademark Examining Attorney, Law Office 104 (Chris
Doninger, Managing Attorney).
_____

Before Bucher, Bergsman and Wolfson, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Nutratek Health Innovations, Inc. (“applicant”) filed a use-based application
for the mark NUTRATEK, in standard character form, for the following services:
Manufacture of nutritional supplements to order and/or
specification of others, in Class 40; and
Research and development in the field of nutritional
supplements, in Class 42.
The Trademark Examining Attorney refused registration under Section 2(d)
of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark so resembles the registered marks listed below as to be likely to cause
confusion:
Serial No. 85577160
2

A. Registration owned by Richard Litov.
NUTRATEC IDEAS INTO PRODUCTS and design, shown below, for
“research and development services for the food, nutritional, biotechnology and
pharmaceutical industries,” in Class 42.1

B. Registrations owned by Nutramarks, Inc.
1. NUTRITECH and design, shown below, for “vitamin, mineral,
protein supplement sold in time release capsule form,” in Class 5;2 and

2. NUTRATECH, in typed drawing form, for “chemical raw
materials for use in the manufacture of health and nutritional supplements,” in
Class 1.3
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 the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177

1 Registration No. 1861969, issued November 8, 1994; renewed.
2 Registration No. 1033561, issued February 17, 1976; second renewal.
3 Registration No. 2570209, issued May 14, 2002; renewed.
Serial No. 85577160
3

USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 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 services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
We analyze each of the cited registrations individually starting with
Registration No. 1861969 for the mark NUTRATEC IDEAS INTO PRODUCTS and
design, and then analyze the registrations owned by Nutramarks, Inc., Registration
No. 1033561 for the mark NUTRITECH and design and Registration No. 2570209
for the mark NUTRATECH.
I. Registration No. 1861969 for the mark
NUTRATEC IDEAS INTO PRODUCTS and design.

A. The similarity or dissimilarity and nature of the services.

1. Research and development services.
Applicant is seeking to register its mark for “research and development in the
field of nutritional supplements.” The mark in the cited registration has been
registered for “research and development services for the food, nutritional,
biotechnology and pharmaceutical industries.” Registrant’s services encompass
applicant’s services and, therefore, they are legally identical.
Serial No. 85577160
4

Because the services described in the application and the cited registration
are legally identical, we must presume that the channels of trade and classes of
purchasers are the same. See American Lebanese Syrian Associated Charities Inc.
v. Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011); In re
Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the same channels of trade,
and be sold to the same class of purchasers.”). See also In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion).
2. Manufacture of nutritional supplements to order and/or specification of
others.

Applicant is also seeking to register its mark for the “manufacture of
nutritional supplements to order and/or specification of others.”
The Trademark Examining Attorney submitted excerpts from third-party
websites described below to show that the same companies manufacture nutritional
supplements to the order and specification of others and also provide research and
development services.
a. July 5, 2012 Office action.
1. Ion Labs (ionlabs.com) advertises that its “development to
delivery process” includes product research and development.
Our manufacturing capabilities include Nutritional, OTC,
Rx, and Medical Food products. Ion Labs has performed
operations in tablet, capsule, and liquid manufacturing
Serial No. 85577160
5

for customers of all sizes. Our tablet & capsule
manufacturing and packaging services have been tailored
to fit your orders needs no matter the volume. Our liquid
manufacturing and packaging operation has been
designed to offer maximum performance for large and
small volume orders.
Tablet manufacturing is an operation which requires
much attention to Research & Development for
maximized product consistency. Our tablet R&D
department is specifically set up to reduce loss resulting
in a more efficient, consistent, and cost saving tablet
manufacturing experience. Like our tablet
manufacturing, our capsule manufacturing operation
utilizes our experience to improve product consistency
and quality through efficient and accurate R&D. …
Quality is first in liquid manufacturing and attention to
detail in the beginning stages of R&D is paramount. Our
protocols have been established to provide your liquid
manufacturing the time, quality, consistency, and cost
effectiveness in mind.
2. Fusion Formulations (fusion-formulations.com) advertises
its product manufacturing (contract manufacturing and private label
manufacturing), research and development (as a consultant or “an R&D resource in
the formulation of … new formulas with unique dosage forms and flavoring
systems”) and quality control and validation.
3. Gemini Pharmaceuticals (geminipharm.com) advertises
its contract manufacturing services and its product development services.
4. Celmark International Inc. (celmarkint.com) advertises
that it is “a specialized R&D and manufacturing partner in the dietary and
supplement and cosmeceutical industry.”

Serial No. 85577160
6

b. December 31, 2012 Office action.
In this Office action, the Trademark Examining Attorney submitted excerpts
from the UAS Laboratories (uaslabs.com), Nutrabio (nutrabio.com), Monarch
Neutraceuticals (monarchminerals.com), Pharmachem Laboratories
(pharmachemlabs.com), Vest Pharmaceuticals, Inc. (vestapharm.com), Essentially
Pure Ingredients (essentiallypure.com), Glanbia Nutritionals
(glanbianutritionals.com), and Genesis Pure (genesispure.com) websites showing
that these companies both manufacture dietary supplements for others as well as
conduct research and development services for their customers.
c. December 3, 2012 response to Office action.
In its December 3, 2012 response to the July 5, 2012 Office action, applicant
submitted excerpts from its website, including its “Research” web page which states
that applicant “is passionate about developing effective products for our clients.”
While applicant does not expressly state that it performs research and development
for others, providing a web page about its research department that is available to
its clients indicates that applicant believes its research capability is an important
service that it either renders to its customers or has the capability to perform to
support its own business.
In view of the foregoing, we find that applicant’s “manufacture of nutritional
supplements to order and/or specification of others” is related to registrant’s
“research and development services for the food, nutritional, biotechnology and
pharmaceutical industries.”
Serial No. 85577160
7

B. The likely to continue channels of trade and classes of consumers.
The third-party websites also demonstrate that the custom manufacturing of
nutritional supplements and research and development in the field of nutritional
supplements move in the same channels of trade and are sold to the same classes of
consumers. For example, the Ions Labs website, discussed above, described the
close association between manufacturing nutritional supplements and research
development (“Tablet manufacturing is an operation which requires much attention
to Research & Development for maximized product consistency.”). See also
Monarch Nutriceuticals (“Monarch Research & Development utilizes state-of-the-
art technology … to ensure quality throughout the development process. … We will
work on it in our development lab and let you know if it can be done.”).
In view of the foregoing we find that applicant’s “manufacture of nutritional
supplements to order and/or specification of others” moves in the same channels of
trade and is sold to the same classes of consumers as registrant’s “research and
development services for the food, nutritional, biotechnology and pharmaceutical
industries.”
C. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression and the strength
of the mark in the cited registration.

We now turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, any one of these means of comparison may be
Serial No. 85577160
8

critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In
comparing the marks, we are mindful that the test 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 so
that confusion as to the source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992).
Moreover, where, as here, the services are both legally identical and
otherwise closely related, the degree of similarity necessary to find likelihood of
confusion need not be as great as where there is a recognizable disparity between
the services. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85
USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Products Inc. v. Ing-
Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
Applicant’s mark is NUTRATEK in standard character form. Registrant’s
mark NUTRATEC IDEAS INTO PRODUCTS is displayed below.

Serial No. 85577160
9

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). See also Franklin Mint Corp. V. Master Mfg.
Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It is axiomatic that a mark
should not be dissected and considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”). On the other hand, 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.
With respect to the mark in the cited registration, we find that the term
NUTRATEC is the most significant and dominant element of the mark. We reach
this conclusion because the term NUTRATEC is by far the largest and most eye
catching element of the mark. The term “Ideas Into Products” is in the nature of
advertising copy that explains to consumers that registrant’s research and
development services turn ideas into products. Moreover, where, as here, the mark
consists of both words and a design element, the words are normally given greater
weight because they would be used by consumers to request or refer to the services.
In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re Appetito
Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also Sweats Fashions Inc.
Serial N

v. Pann
Food, In
1983).
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element
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(TTAB 1
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design
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also Un
1977) (“
are sub
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cited ma
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n the othe
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AB 1977)
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Serial No. 85577160
12

supplements. The relevant third-party registrations are listed below (emphasis
added):4
1. Registration No. 3766720 for the mark LEADERS IN
NUTRACEUTICAL TECHNOLOGY for “manufacturing services for others in the
field of vitamin, dietary, bodybuilding and energy supplement”;5
2. Registration No. 3122879 for the mark NUTRACEUTIX BETTER
FOR THE BRAND. BETTER FOR THE RETAILER. BETTER FOR THE
CONSUMER for custom manufacture of nutritional, vitamin and mineral
supplements; and product research and development in the field of nutritional,
vitamin and mineral supplements;
3. Registration No. 1937654 for the mark ADVANCED NUTRITIONAL
TECHNOLOGY for “vitamins, minerals, nutritional food supplements, and dietary
foods supplements for human use”;6
4. Registration No. 3180139 for the mark ACCELERATED
NUTRITIONAL TECHNOLOGY for “dietary supplements”;7

4 We give little probative value to Registration No. 1974437 for the mark NITROTEC for
“heat treatment and coating services” because this mark is registered for services that are
not related to nutritional supplements. See In re Thor Tech Inc., 90 USPQ2d 1634, 1639
(TTAB 2009) (the third-party registrations are of limited probative value because the goods
identified in the registrations appear to be in fields which are far removed from the goods at
issue). See also Key Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99,
(CCPA 1972) (“Nor is our conclusion altered by the presence in the record of about 40 third-
party registrations which embody the word ‘KEY’. The great majority of those registered
marks are for goods unrelated to those in issue, and there is no evidence that they are in
continued use. We, therefore, can give them but little weight in the circumstances present
here”).
5 Registrant disclaimed the exclusive right to use the term “Nutraceutical Technology.”
6 Registrant disclaimed the exclusive right to use the word “Nutritional.”
Serial No. 85577160
13

5. Registration No. 3104825 for the mark NUTRAGON for dietary
supplements and processing organic matter for inclusion into dietary supplements;
6. Registration No. 2890409 for the mark VITA-TECH for the “custom
manufacture of nutritional supplements”;
7. Registration No. 1963917 for the mark NUTRITION TECHNOLOGY
ADVANTAGE for “providing animal feeding and nutrition information to others.”8
There are two problems with applicant’s evidence and argument which
prevents us from using the third-party registrations to find that the mark in the
cited registration is diluted and entitled to only a narrow scope of protection or
exclusivity of use, consumers can distinguish the marks and applicant’s mark is not
likely to cause confusion with the marks in the cited registrations. First, absent
evidence of actual use, third-party registrations have little probative value because
they are not evidence that the marks are in use on a commercial scale or that the
public has become familiar with them. See Smith Bros. Mfg. Co. v. Stone Mfg. Co.,
476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not aware
of registrations reposing in the U.S. Patent and Trademark Office); Productos
Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921,
1934 (TTAB 2011). See also In re Hub Distributing, Inc., 218 USPQ 284, 285 (TTAB
1983).
[I]t would be sheer speculation to draw any inferences
about which, if any of the marks subject of the third[-
]party registrations are still in use. Because of this doubt,

7 Registrant disclaimed the exclusive right to use the term “Nutritional Technology.”
8 Registrant disclaimed the exclusive right to use the term “Nutrition Technology.”
Serial No. 85577160
14

third[-]party registration evidence proves nothing about
the impact of the third-party marks on purchasers in
terms of dilution of the mark in question or conditioning
of the purchasers as to their weakness in distinguishing
source.
Id. at 286. See also Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22
USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however,
registration evidence may not be given any weight”).
Second, only four of the third-party registrations, other than the cited
registrations, include marks incorporating both “Nutra” and “Tech” or variations
thereof and those marks are not nearly as close to the mark in the cited registration
as applicant’s mark.
Nevertheless, third-party registrations may be used in the manner of a
dictionary to show that a mark or a portion of a mark is descriptive or suggestive of
goods and services. In re Sela Prods., LLC, 107 USPQ2d 1580, 1588 (TTAB 2013).
In that regard, the third-party registrations demonstrate that the dominant
element of the registered mark, NUTRATEC, engenders the commercial impression
of “nutritional technology.” This is because the terms “Nutra” and “Tech” in the
third party registrations are part of the words “Nutritional” and “Technology.”
However, rather than distinguish applicant’s mark from the mark in the cited
registration, the third-party registrations lead to the conclusion that applicant’s
mark NUTRATEK and the mark in the cited registration NUTRATEC IDEAS TO
PRODUCTS and design engender similar commercial impressions – “nutritional
technology.”
Serial No. 85577160
15

In view of the foregoing, we find that the marks are similar in terms of
appearance, sound, connotation and commercial impression.
D. The degree of consumer care.
Applicant argues that the consumers for applicant’s services exercise a high
degree of care. Applicant submitted the affidavit of David Hardy, an employee of
applicant.9 Mr. Hardy testified that applicant sells its nutritional supplements and
services to “health conscious working class individuals, typically between the ages
of 18 and 65, who are interested in preventative health measures.”10
Our services exist specifically to health conscious,
working class individuals, typically between the ages of
18 and 65, who are interested in preventative health
measures. The supplements containing out [sic]
NUTRATEK quality assurance seal typically range from
$19.95 to $99.95 depending on the customer-type, volume,
product ordered, and container size.11
The problem with the testimony in the Hardy Affidavit is that Mr. Hardy is
testifying about the degree of care exercised by applicant’s ultimate consumers for
its finished products. This application does not involve nutritional supplements;
applicant is seeking to register its mark for manufacturing nutritional supplements
to the order and specification of others and research and development in the field of
nutritional supplements. We fail to see how the testimony shows that health
conscious, working class individuals would come within the classes of purchasers
for these services.

9 Applicant did not identify Mr. Hardy’s position or title with applicant.
10 Hardy Affidavit, ¶¶3 and 15.
11 Hardy Affidavit, ¶16.
Serial No. 85577160
16

Nevertheless, the inherent nature of applicant’s services and registrant’s
services indicate that the prospective consumers will exercise a high degree of care.
The customers are likely to exercise a high degree of care for the following reasons:
1. The sales process would involve interactions with knowledgeable
salespersons,
2. The sales process will involve consultations with experts in the field of
nutritional supplements;
3. The sales process will involve a comparison of competitive sources;
4. The purchaser will have a reasonably focused need involving the
services;
5. The services are essential to the purchaser’s business;
6. The services are unusual in terms of their nature and complexity;
7. The purchaser has an added duty of care because he is ordering the
vendor to manufacture an ingestible product; and
8. The price will be important.
E. Balancing the factors.
Despite the fact applicant’s potential purchasers will likely exercise a high
degree of care, in view of the facts that the marks are very similar, the services are
in part legally identical and otherwise closely related and move in the same
channels of trade and are sold to the same classes of consumers, we find that
applicant’s mark NUTRATEK for the “manufacture of nutritional supplements to
order and/or specification of others” and “research and development in the field of
Serial No. 85577160
17

nutritional supplements” is likely to cause confusion with the registered mark
NUTRATEC IDEAS TO PRODUCTS and design for “research and development
services for the food, nutritional, biotechnology and pharmaceutical industries.”
These other factors outweigh the degree of care that customers will exercise.
II. Registration No. 1033561 for the mark NUTRITECH and Design
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression and the strength
of the mark in the cited registration.

We find applicant’s mark NUTRATEK to be similar to the mark in the cited
registration NUTRITECH and design, shown below,

for the same reasons we found NUTRATEK to be similar to the mark NUTRATEC
IDEAS TO PRODUCTS and design. NUTRITECH is the dominant element of the
registered mark, NUTRITECH and NUTRATEK are very similar in appearance
and sound, the design element in the registered mark fails to distinguish the marks,
and the marks engender the same commercial impression.
B. The similarity or dissimilarity and nature of the goods and services, the
established likely-to-continue channels of trade, classes of consumers, and
degree of consumer care.

1. Manufacture of nutritional supplements to order and/or specification of
others.

Serial No. 85577160
18

Applicant is seeking to register its mark for the “manufacture of nutritional
supplements to order and/or specification of others” while the mark in the cited
registration has been registered for “vitamin, mineral, protein supplement sold in
time release capsule form.”
The Trademark Examining Attorney submitted three use-based, third-party
registrations for products and services listed in both the application and
registration at issue. Third-party registrations which individually cover a number
of different services that are based on use in commerce may have some probative
value to the extent that they serve to suggest that the listed services are of a type
which may emanate from the same source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988). The registrations are listed below.12
Mark Reg. No. Goods/services

4082375 Dietary supplement; nutrient
supplements; custom manufacture of
ingredients for dietary supplements

3801202 Dietary and nutritional supplements;
manufacturing in the field of dietary and
nutritional supplements

12 We have not included the entire description of goods and services for each of the
registrations. Only the goods in both applicant’s application and registrant’s registration
are listed.
Serial No. 85577160
19

Mark Reg. No. Goods/services

3198935 Vitamins, mineral, herbal, dietary, and
nutritional supplements; custom
manufacture for others of vitamins,
herbal, dietary and nutritional
supplements

As far as the evidence from the third-party websites, only UAS Laboratories
(uaslabs) advertises that it “offers branded products, raw materials, private labeling
and custom manufacturing.”13 The majority of the third-party websites advertised
private label or contract manufacturing of nutritional supplements and not finished
products.
On the other hand, a company that manufactures nutritional supplements to
the order and specification of others could manufacture vitamin, mineral, protein
supplements in time release capsules and other forms to the order and specification
of its customers. It would not be a great leap for such a company to also
manufacture vitamin, mineral, and protein supplements in time release capsules or
other forms for sale in other distribution channels because nutritional supplements
are so closely related to vitamin, mineral and protein supplements.14
The only entity that would encounter both custom manufacturing of
nutritional supplements and vitamin, mineral and protein supplements similarly

13 December 31, 2012 Office action.
14 According to the Encyclopedia Britannica (2013), “nutritional supplement” is defined as
“in foods, any vitamin or mineral added during processing to improve nutritive value and
sometimes to provide specific nutrients in which populations are deficient” and a “dietary
supplement” is defined as “any vitamin, mineral, herbal product, or other ingestible
preparation that is added to the diet to benefit health.” The Board may take judicial notice
of information from encyclopedias. Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La
Michoacana Inc., 98 USPQ2d 1921, 1934 n.6 (TTAB 2011).
Serial No. 85577160
20

marked is a company that is custom ordering vitamin, mineral, or protein
supplements for resale. As discussed above, the customer that encounters both of
these services will exercise a high degree of care.
In view of the foregoing we find that applicant’s “manufacture of nutritional
supplements to order and/or specification of others” is related to the registrant’s
“vitamin, mineral, protein supplement sold in time release capsule form,” the
services and goods move in the same channels of trade and are sold to the same
class of consumers. However, the relevant class of consumer exercises a high degree
of consumer care.
2. Research and development in the field of nutritional supplements
Applicant also seeks to register its mark for “research and development in
the field of nutritional supplements.” The Trademark Examining Attorney
submitted six use-based, third-party registrations for goods encompassed by the
description of goods in the cited registration, “vitamin, mineral, protein supplement
sold in time release capsule form,” and those similar to applicant’s services, namely,
“research and development in the field of nutritional supplements” or variations
thereof. The registrations are listed below.15
Mark Reg. No. Goods/services

4082375 Dietary supplements; nutrient
supplements; technical consultancy in
relation to research services relating to
food products and dietary supplements

15 We have not included the entire description of goods and services for each of the
registrations. Only the goods in both applicant’s application and registrant’s registration
are listed.
Serial No. 85577160
21

Mark Reg. No. Goods/services
NEWTON EVERETT 3356833 Vitamins and food supplements;
development of vitamins and food
supplements
MAKING FOODS
FUNCTIONAL
3570881 Product development services in field of
dietary supplements and nutraceuticals;
food supplements and dietary
supplements, namely functional
ingredients of botanical extracts for
enhancing health

3801202 Product development services in the field
of dietary supplements; dietary and
nutritional supplements
AMINOPURT 3514187 Dietary and nutritional supplements for
gastrointestinal health and for
enhancing immune response; product
research and development in the fields of
dietary and nutritional supplements

3198935 Vitamins, mineral, herbal, dietary and
nutritional supplements; product
research and development in the field of
vitamins, mineral, herbal, dietary and
nutritional supplements

None of the third-party websites submitted by the Trademark Examining
Attorney show any company selling nutritional supplements under the same mark
used to advertise or sell research and development services in the field of
nutritional supplements. On the other hand, the third-party websites show that
companies that manufacture nutritional supplements for others also conduct
research and development services to support their client’s products. As indicated
above, these companies also make vitamin, mineral, protein supplements in time
release capsules and other forms to the order and specification of its customers.
The only entity that would encounter custom manufacturing of nutritional
supplements, research and development services in the field of nutritional
Serial No. 85577160
22

supplements, and vitamin, mineral and protein supplements similarly marked is a
company that is custom ordering vitamin, mineral, or protein supplements and/or
requesting research and development services. As discussed above, these customers
will exercise a high degree of care.
In view of the foregoing, we find that applicant’s “research and development
in the field of nutritional supplements” is related to the registrant’s “vitamin,
mineral, protein supplement sold in time release capsule form,” the services and
goods move in the same channels of trade and are sold to the same class of
consumers. However, the relevant class of consumer exercises a high degree of
consumer care.
C. Balancing the factors.
Despite the fact applicant’s potential purchasers will exercise a high degree
of care, in view of the facts that the marks are similar, the goods and services are
closely related and move in the same channels of trade and are sold to the same
classes of consumers, we find that applicant’s mark NUTRATEK for the
“manufacture of nutritional supplements to order and/or specification of others” and
“research and development in the field of nutritional supplements” is likely to cause
confusion with the registered mark NUTRITECH and design for “vitamin, mineral,
protein supplement sold in time release capsule form.” These other factors
outweigh the degree of care that customers will exercise.

Serial No. 85577160
23

III. Registration No. 2570209 for the mark NUTRATECH
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression and the strength
of the mark in the cited registration.

We find applicant’s mark NUTRATEK to be similar to the mark in the cited
registration NUTRATECH for the same reasons that we found NUTRATEK to be
similar to the marks NUTRITECH and design and NUTRATEC IDEAS TO
PRODUCTS and design. NUTRATECH and NUTRATEK are similar in appearance
and sound, the design elements are insignificant, and the marks engender the same
commercial impression.
B. The similarity or dissimilarity and nature of the goods and services, the
established likely-to-continue channels of trade, classes of consumers.

1. Manufacture of nutritional supplements to order and/or specification of
others.

Applicant is seeking to register its mark for the “manufacture of nutritional
supplements to order and/or specification of others” while the mark in the cited
registration has been registered for “chemical raw materials for use in the
manufacture of health and nutritional supplements.”
The Trademark Examining Attorney submitted three use-based, third-party
registrations for services similar to those in the registrant’s recitation of services,
the “manufacture of nutritional supplements to order and/or specification of others,”
and similar to the recitation of services in the cited registration, “chemical raw
Serial No. 85577160
24

materials for use in the manufacture of health and nutritional supplements.” The
registrations are listed below.16
Mark Reg. No. Goods/services

3848176 Bulk raw materials in the nature of
vitamins for use in nutritional, herbal,
mineral, vitamin, dietary food, and
feed supplements for pets;
manufacturing services for others in
the field of nutritional, herbal, mineral,
vitamin, dietary food, and feed
supplements for pets
JARROW INDUSTRIES 2752977 Custom manufacture of vitamins,
dietary, nutritional, food and herbal
supplements; purchasing raw
materials for others in the
manufacture of vitamins, dietary,
nutritional, food and herbal
supplements

3801202 Chemicals, namely, raw ingredients
used in the manufacture of dietary
supplements and food; custom
manufacturing of multi-ingredient
dietary and nutritional supplements
and food additives

The third-party websites submitted by the Trademark Examining Attorney
establish that many custom manufacturers of nutritional supplements also supply
bulk ingredients for nutritional supplements and/or advertise their extensive
inventory of basic raw materials. For example,
1. AIE Pharmaceuticals (atihealthnet.com) displays the following logo on
its home page:17

16 We have not included the entire description of goods and services for each of the
registrations. Only the goods in both applicant’s application and registrant’s registration
are listed.
17 December 31, 2012 Office action.
Serial N

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Serial No. 85577160
26

5. UAS Laboratories (uaslabs.com) advertises that it “offers branded
products, raw materials, private labeling and custom manufacturing.”21
6. The NutraBio (nutrabio.com), Monarch Nutraceuticals
(monarchminerals), Pharmachem Laboratories (pharmachemlabs.com), and RFI
LLC (fringredients.com) websites all advertise that the companies provide custom
manufacturing services in the field of nutritional supplements as well as being a
source of raw bulk ingredients.22
The third-party websites also demonstrate that the custom manufacturing of
nutritional supplements and “chemical raw materials for use in the manufacture of
health and nutritional supplements” move in the same channels of trade and are
sold to the same classes of consumers. The websites show that the custom
manufacturers market their custom manufacturing services along with their bulk
ingredients to the same consumers.
In view of the foregoing we find that applicant’s “manufacture of nutritional
supplements to order and/or specification of others” is related to registrant’s
“chemical raw materials for use in the manufacture of health and nutritional
supplements” and that the goods and services move through the same channels of
trade and are sold to the same classes of consumers.
2. Research and development in the field of nutritional supplements
Applicant also seeks to register its mark for “research and development in
the field of nutritional supplements.” The Trademark Examining Attorney

21 December 31, 2012 Office action.
22 Id.
Serial No. 85577160
27

submitted four use-based, third-party registrations for “chemical raw materials for
use in the manufacture of health and nutritional supplements” and “research and
development in the field of nutritional supplements” or variations thereof. The
registrations are listed below.23
Mark Reg. No. Goods/service
JARROW INDUSTRIES 2752977 Product research, development and
testing for others; raw materials for use
in the manufacture of vitamins, dietary,
food and herbal supplements

4082375 Non-medicated ingredients or additives
for use as ingredients in nutritional
supplements, namely, extracts of fruit,
vegetables or grains and essences of
fruit, vegetables or grains and essences
of fruit, vegetables or grains and juices of
fruits and vegetables; technical
consultancy in relation to research
services relating to food products and
dietary supplements; scientific
consulting and research relating to foods
and dietary supplements
MAKING FOODS
FUNCTIONAL
3570881 Product development services in field of
dietary supplements and nutraceuticals;
wholesale distributorship services
featuring raw materials sold in bulk to
manufacturers of dietary supplements,
and nutraceuticals

3801202 Product development services in the field
of dietary supplements; chemicals,
namely, raw ingredients used in the
manufacture of dietary supplements

23 We have not included the entire description of goods and services for each of the
registrations. Only the goods in both applicant’s application and registrant’s registration
are listed.
Serial No. 85577160
28

The Trademark Examining Attorney also submitted third-party websites
where companies advertised their bulk ingredients inventory and the research and
development services. For example,
1. Atlantic Essential Products, Inc. (atlanticepny.com) advertises that it
“specifically design[s] and customize[s] nutraceutical products based on the unique
individual needs of our prospective client-partners. New products and formulas are
researched and tested prior to full-scale production” and that it maintains an
inventory of raw materials to provide a diverse selection of nutrients.24
2. UAS Laboratories (uaslabs.com) advertises its raw materials and
“specialized” research, product development and consulting services.25
3. NutraBio (nutrabio) advertises its “bulk raw ingredient supply” and
research and development laboratories.
4. Monarch Nutraceuticals (monarchminerals.com) advertises “Monarch
R&D,” where the company’s development team will work on the customers’ ideas for
new products and let them know if it can be done, as well as Monarch’s “industry
leading inventory of mineral ingredients.”26
5. Pharmachem Laboratories (pharmachemlabs.com) advertises its
specialty ingredients, as well as its research and development services.27

24 July 5, 2012 Office action.
25 December 31, 2012 Office action.
26 Id.
27 Id.
Serial No. 85577160
29

6. Essentially Pure Ingredients (essentiallypure.com) has links to it
“Product R&D” web page and to its “Raw Materials” web page where it “offers a
growing range of premium quality raw materials for your nutritional supplement
formulations.”28
7. Glanbia Nutritionals (glanbianutritionals.com) posts web pages for its
nutritional ingredients and for its research and development services.29
The third-party websites also demonstrate that research and development in
the field of nutritional supplements and “chemical raw materials for use in the
manufacture of health and nutritional supplements” move in the same channels of
trade and are sold to the same classes of consumers. The website shows that the
nutritional supplement suppliers who conduct research and development for their
customers market these services along with their bulk ingredients to the same
consumers.
C. The degree of consumer care.
As discussed above, applicant’s testimony and arguments regarding the
degree of consumer care has limited probative value because Mr. Hardy testified
about the degree of care exercised by applicant’s ultimate consumers for its finished
products, not the services involved in this application. Nevertheless, the inherent
nature of applicant’s services indicates that applicant’s prospective consumers will
exercise a high degree of care.

28 Id.
29 Id.
Serial No. 85577160
30

D. Balancing the factors.
Despite the fact applicant’s potential purchasers will exercise a high degree
of care, in view of the facts that the marks are very similar, the goods and services
are closely related and move in the same channels of trade and are sold to the same
classes of consumers, we find that applicant’s mark NUTRATEK for the
“manufacture of nutritional supplements to order and/or specification of others” and
research and development in the field of nutritional supplements” is likely to cause
confusion with the registered mark NUTRATECH for “chemical raw materials for
use in the manufacture of health and nutritional supplements.” These other factors
outweigh the degree of care that customers will exercise
Decision: The refusal to register is affirmed.