Ortho-Nutra, LLC

Trademark Trial and Appeal Board

Jul 25, 2019

87482673 (T.T.A.B. Jul. 25, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 25, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Ortho-Nutra, LLC
_____

Serial No. 87482673
_____

Jonathan Manfre and Paul Grandinetti of Collins Gann McCloskey & Barry PLLC,
for Ortho-Nutra, LLC.
Ronald McMorrow, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.
_____

Before Kuczma, Larkin, and Dunn,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Ortho-Nutra, LLC (“Applicant”) seeks registration on the Principal Register of the
mark DYNAMINE in standard characters for “dietary and nutritional supplements,”
in International Class 5.1

1 Application Serial No. 87482673 was filed by NovaNutra, LLC on June 9, 2017 under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on NovaNutra, LLC’s allegation
of a bona fide intention to use the mark in commerce. Following the completion of briefing on
this appeal, the application was assigned to Ortho-Nutra, LLC under an assignment recorded
in the United States Patent and Trademark Office (“USPTO”) on April 1, 2019 under
Reel/Frame 6626/0149. Ex parte examination of the validity of the assignment of an intent-
to-use application takes place in narrow circumstances that are not present here. See
TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) Section 501.01(a) (Oct. 2018). In
Serial No. 87482673
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on that ground that it
so resembles the typed mark DYNO-MINS shown in Registration No. 1456058 for a
“dietary food supplement”2 as to be likely, when used on or in connection with the
goods identified in the application, to cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration, 9-13 TTABVUE,3 which was denied. 15 TTABVUE. The appeal is
fully briefed. We affirm the refusal to register.
I. Evidentiary Matter
Before turning to the merits of the appeal, we address an evidentiary matter
resulting from Applicant’s attachment to its reply brief of a Wikipedia entry
regarding the dynamine genus of South American butterflies. 20 TTABVUE 4-6
(Exhibit 418). Applicant cites this entry in support of a new argument that “[t]he
word ‘dynamine’ is the name for butterflies found in South America” and that the
“average member of the public and the relevant consumer upon viewing the word

view of the assignment, we will refer to both NovaNutra, LLC and Ortho-Nutra, LLC as
“Applicant.”
2 The cited registration issued on September 8, 1987 and was last renewed in 2017.
3 Citations in this opinion to the briefs and the Request for Reconsideration refer to
TTABVUE, the Board’s online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473,
1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the
docket entry number, and any numbers following TTABVUE refer to the page number(s) of
the docket entry where the cited materials appear.
Serial No. 87482673
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‘dynamine’ will understand the word to be a name for butterflies and will not
associate the mark with the cited mark ‘DYNO-MINS.’” Id. at 2.4
The Wikipedia evidence was not made of record during prosecution, and we
exclude it because it is untimely.5 See generally Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”)
Section 1203.02(e) (June 2019) and cases cited therein. We have given no
consideration to this material and Applicant’s related arguments in its reply brief.
See In re Luxuria, s.r.o., 100 USPQ2d 1146, 1147-48 (TTAB 2011) (untimely materials
attached to reply brief excluded and “because even a cursory review of the reply brief
indicates that the brief discusses this material at length, applicant’s reply brief has
not been considered”).
II. Record on Appeal
The record on appeal consists of the following, all of which were made of record by
Applicant:
1. A page from the website of the owner of the cited registration;6

4 Applicant made an unsupported variant of this argument in its main brief, in which it
claimed that “‘DYNA’ means ‘power’ and ‘is used in the formation of compound words’,” and
“is also a type of butterfly, so there are two distinct definitions of the word.” 17 TTABVUE 9.
Applicant cited a dictionary definition of “dyna” in support of the first claimed meaning, but
pointed to nothing to support the second. Id.
5 We act sua sponte because the evidence was attached to Applicant’s reply brief, and the
Examining Attorney thus had no opportunity to address it.
6 January 31, 2018 Response to Office Action at TSDR 7. All citations in this opinion to the
application record are to pages in the USPTO’s Trademark Status & Document Retrieval
(“TSDR”) database.
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2. Pages from the USPTO’s Trademark Electronic Search System (“TESS”)
and TSDR databases regarding third-party registrations of marks
containing “DYNO” or “DYNA;”7
3. Dictionary definitions of the words or particles “min,” “dyna,” “mine,” and
“dynamite;”8
4. Pages from the TSDR database regarding third-party registrations of
marks containing “MINE;”9 and
5. Pages from the TSDR database regarding third-party registrations of
marks containing “MIN” or “MINS.”10
III. Analysis of Likelihood of Confusion Refusal
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177

7 August 9, 2018 Request for Reconsideration (9 TTABVUE 67-85; 95-330; 10 TTABVUE 1-
268). Applicant attached copies of the DYNO registrations to its main brief, 17 TTABVUE
23-40, along with other materials, id. at 41-48, 52-70, including printouts from the TESS
database that appear to list other registrations that Applicant previously made of record. Id.
at 49-51, 71-76. It was unnecessary and distracting for Applicant to resubmit copies of
materials already in the record. See In re Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014).
8 9 TTABVUE 86-94; 10 TTABVUE 269-290.
9 10 TTABVUE 291-300; 11 TTABVUE 1-300; 12 TTABVUE 1-51.
10 12 TTABVUE 52-300; 13 TTABVUE 1-168.
Serial No. 87482673
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USPQ 563, 567 (CCPA 1973). We consider each DuPont factor for which there is
evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d
1160, 1162-63 (Fed. Cir. 2019).
Two key factors in every § 2(d) case are the similarity or dissimilarity of the
marks, and the goods or services, because the “fundamental inquiry mandated by
§ 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods [or services] and differences in the marks.” Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Both Applicant
and the Examining Attorney address these key factors, 17 TTABVUE 5-16; 19
TTABVUE 3-7, as well as the third DuPont factor, the similarity or dissimilarity of
the pertinent channels of trade, 17 TTABVUE 16-18; 19 TTABVUE 4, and the fourth
DuPont factor, the conditions under which and buyers to whom sales are made. 17
TTABVUE 18-19; 19 TTABVUE 4. Applicant also discusses various third-party
registrations, which appear to relate to the sixth DuPont factor, the number and
nature of similar marks in use on similar services.
A. Similarity or Dissimilarity of the Goods and Channels of Trade
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,’” In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting
DuPont, 177 USPQ at 567), while the third DuPont factor “considers ‘[t]he similarity
or dissimilarity of established, likely-to-continue trade channels.’” Id. at 1052
(quoting DuPont, 177 USPQ at 567). Our analysis under these factors is based on the
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identifications of services in the application and cited registration. Id.; Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-
63 (Fed. Cir. 2014).
The goods in the application are identified as “dietary and nutritional
supplements,” while the goods in the cited registration are identified as a “dietary
food supplement.” Where, as here, “the goods in the application at issue and/or in the
cited registration are broadly identified as to their nature and type,” it is presumed
that they encompass “all the goods of the nature and type described therein . . . .” In
re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). The more general
identification “dietary and nutritional supplements” in the application encompasses
the more specific identification “dietary food supplement” in the cited registration
because a “dietary food supplement” is a type of “dietary and nutritional supplement.”
The goods are thus legally identical. See, e.g., In re Hughes Furniture Indus., Inc., 114
USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of
‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture”); Jump Designs, 80 USPQ2d at 1374. The second DuPont
factor supports a finding of a likelihood of confusion.11

11 Applicant argues that “the goods represented by the marks are highly distinct,” 17
TTABVUE 15, because its mark “represents a powdered ingredient that will be used solely
in the manufacture of dietary supplements,” id., while a screenshot from the registrant’s
website shows that the cited mark is used for “finished dietary supplements in the form of
vitamins and minerals.” Id. at 16. This argument is unavailing. The “dietary and nutritional
supplements” identified in the application are not restricted to “a powdered ingredient that
will be used solely in the manufacture of dietary supplements,” id. at 15, and neither
identification can be restricted based on argument of counsel or proof of actual use of the
subject marks. See, e.g., In re Thor Tech., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no
authority to read any restrictions or limitations into the registrant’s description of goods”);
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With respect to the third DuPont factor, “‘[i]t is well established that absent
restrictions in the application and registration, [identical] goods and services are
presumed to travel in the same channels of trade to the same classes of purchasers.’”
Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018)
(quoting In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)).
No restrictions appear in the identifications here and the goods are legally identical,
“and therefore this presumption attaches,” id., and we must deem the channels of
trade and classes of consumers to be identical as well.12 The third DuPont factor also
supports a finding of a likelihood of confusion.

In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (“applicant’s reliance on
registrant’s website in an attempt to restrict the scope of registrant’s goods is to no avail”
because “an applicant may not restrict the scope of the goods covered in the cited registration
by argument or extrinsic evidence”); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764
(TTAB 1986) (an applicant cannot “restrict the scope of its goods in its application and the
scope of the goods covered in the cited registration by extrinsic argument and evidence while
neither the recitation of goods in applicant’s application nor the recitation of goods in the
cited registration is so restricted”).
12 Applicant argues that “‘[b]ecause of the differences in the channels of trade and customers
for applicant’s and the registrant’s goods, there is virtually no opportunity for confusion to
arise.’” 17 TTABVUE 16 (quoting In re HerbalScience Grp. LLC, 96 USPQ2d 1321, 1324
(TTAB 2010)). Applicant claims that its goods are purchased “through a complex trade
channel” by dietary supplement manufacturers who must first go to Applicant’s website and
then engage in contract negotiations with Applicant prior to purchase, 17 TTABVUE 17,
while the registrant’s goods “are sold directly to consumers via the internet, by clicking on
the purchase tab on the website, or in vitamin/supplement stores.” Id. These arguments are
also unavailing. As noted above, the “dietary and nutritional supplements” identified in the
application are not limited to supplements “for use in the manufacture” of other goods in the
manner in which the identification of the applicant’s goods was expressly limited in
HerbalScience. 96 USPQ2d at 1322. In the absence of such a limitation, we must assume that
the “dietary and nutritional supplements” identified in the application and the “dietary food
supplement” identified in the cited registration “travel in the same channels of trade” and
“that the same classes of purchasers buy these goods.” Jump Designs, 80 USPQ2d at 1374.
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B. Third-Party Registrations and the Sixth DuPont Factor
Applicant’s arguments under the first DuPont factor are based in part on its claim
that elements of the involved marks are familiar to consumers, and distinguishable
by them when those elements appear in the respective marks, because of the
existence of third-party marks “beginning with the element ‘DYNO’ in International
Class 005,” and “beginning with the element ‘DYNA’ in International Class 005,” 17
TTABVUE 8, and third-party marks showing that “members of the consuming public
are very familiar with goods in International Class 005 wherein the mark is either a
‘mins’ or a ‘mine’ and would understand that these are different elements and not
merely the singular or plural version of each other.” Id. at 9. Accordingly, before
analyzing the first DuPont factor, we will assess the impact, if any, of the third-party
registrations of these marks under the sixth DuPont factor. See, e.g., In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1745-46 (TTAB 2018) (discussing third-party
registrations under sixth DuPont factor before assessing the similarity of the marks).
The sixth DuPont factor considers “[t]he number and nature of similar marks in
use on similar goods.” DuPont, 177 USPQ at 567. Applicant made of record several
third-party registrations of DYNO- prefix formative marks, 9 TTABVUE 68-72, 73-
76, 82-85, and numerous third-party registrations of DYNA formative marks, for
dietary or nutritional supplements. 9 TTABVUE 100-103, 121-126, 178-181, 209-214,
224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197, and 232-234.13

13 Applicant also made of record a number of registrations of DYNO and DYNA formative
marks for other goods in Class 5, such as deodorizers, pesticides, insecticides, medical devices
and equipment, sleep aids, dietary supplements for animals, pharmaceutical and veterinary
preparations, and dental materials. 9 TTABVUE 77-81, 113-116, 137-146, 151-159, 182-185,
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Applicant also made of record a number of third-party registrations of -MINE suffix
formative marks, 10 TTABVUE 291-300; 11 TTABVUE 1-300; 12 TTABVUE 1-51,
and -MIN(S) suffix formative marks, for dietary and nutritional supplements. Id. at
52-300; 13 TTABVUE 1-168.14
With one exception, Applicant offered no evidence of use of the third-party
marks,15 and “[t]he ‘existence of [third-party] registrations is not evidence of what
happens in the market place or that customers are familiar with them.’” Inn at St.
John’s, 126 USPQ2d at 1746 (quoting AMF Inc. v. Am. Leisure Prods., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973)). Registrations alone, however, may be “‘relevant to
prove that some segment of the composite marks which [Applicant and the cited
registrant] use has a normally understood and well-recognized descriptive or

192-195, 201-208, 215-223, 233-287, 294-300; 10 TTABVUE 1-25, 31-34, 38-51, 56-113, 117-
121, 135-137, 141-153, 163-183, 198-231, 235-268. These registrations have no probative
value with respect to the meaning or significance of the DYNA and DYNO formatives for the
human supplements at issue here. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d
1744, 1751 (Fed. Cir. 2017) (disregarding third-party registrations for goods other than those
at issue where the proffering party had neither proven nor explained that they were related
to the goods in the cited registration); Inn at St. John’s, 126 USPQ2d at 1745 (citing
i.am.symbolic, 123 USPQ2d at 1751; Thor Tech, 90 USPQ2d at 1639, and Key Chem., Inc. v.
Kelite Chem Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972)). Cf. Omaha Steaks Int’l,
Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693-95 (Fed. Cir.
2018) (where goods at issue are identical, third-party uses on other goods are irrelevant).
14 Applicant once again included multiple registrations of such marks for goods in Class 5
other than dietary and nutritional supplements for humans. 11 TTABVUE 31-39, 53-57, 63-
71, 76-83, 89-92, 97-100, 126-133, 148-157, 163-185, 196-199, 212-216, 221-230, 239-250, 258-
300; 12 TTABVUE 1-56, 61-64, 85-89, 139-144, 162-166, 189-193, 208-216, 222-227, 242-253,
272-277, 282-287, 292-300; 13 TTABVUE 1, 21-55, 70-74, 106-110, 122-126, 132-143, 150-
154, and 159-164. To the extent that these registrations are offered by Applicant to show the
meaning of the -MINE or -MIN(S) suffix for dietary and nutritional supplements, they are
not probative on that issue for the reasons discussed in footnote 13 above.
15 As discussed below, one of the DYNO formative marks is owned by the owner of the mark
in the cited registration, and use of both marks is shown on the page from the registrant’s
website made of record by Applicant. January 31, 2018 Response to Office Action at TSDR 7.
Serial No. 87482673
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suggestive meaning, leading to the conclusion that that segment is relatively weak.’”
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674
(Fed. Cir. 2015) (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION
§ 11:90 (4th ed. 2015)).
1. DYNO and DYNA Formative Marks
Applicant argues that its mark “DYNAMINE does not share any common element
with the cited registration for DYNO-MINS,” 17 TTABVUE 9, and Applicant appears
to offer the third-party registrations of the DYNO- and DYNA- formative marks to
show that those prefixes each have a different meaning that would be familiar to
consumers. Id. We will consider this evidence for that purpose, but also to determine
whether it shows that the DYNO- prefix in the cited mark has “a descriptive or
suggestive meaning, leading to the conclusion that that segment is relatively weak.”
Juice Generation, 115 USPQ2d at 1674 Id.16
The third-party registrations of DYNO and DYNA formative marks fall into two
categories:
1. Marks in which DYNA appears as part of the word “dynamic” or
“dynamite” (DYNAMIC, DYNAMIC EVOLUTION, DYNAMIC
VITA, DYNAMIC SUPPELEMENTS DS and design, DYNAMIC
FORMULAS, DYNAMIC HEALTH, DYNAMIC RESERVES and

16 Third-party registrations are probative only of the conceptual weakness of a mark or term.
“‘As to commercial weakness, ‘[t]he probative value of third-party trademarks depends
entirely upon their usage.’” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ 1043,
1059 (TTAB 2017) (quoting Palm Bay Imps., Inc. v. Veuve Cliquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005)). Because the record contains
no evidence of third-party use, there is no evidence that the cited mark is commercially weak.
Serial No. 87482673
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design, DYNAMIC ENZYMES, NATURE’S DYNAMIC, DYNAMIC
MAN, DYNAMIC LIFE, D.I.E. DYNAMIC IMMEDIATE ENERGY
TREATMENT, DYNAMIC FUEL, DYNAMIC MUSCLE BUILDER,
NUTRITION DYNAMICS, DYNAMIC BODY SHAPER, DYNAMIC
TRIO, DYNAMIC FAT BURNERS, and DYNAMITE ENERGY
SHAKE), 9 TTABVUE 96-99, 104-107, 108-112, 117-120, 127-132,
133-136, 147-150, 160-163, 164-168, 169-177, 186-191, 196-200, 229-
232; 10 TTABVUE 52-55, 114-116, 122-124, 125-134, 138-140, 154-
162, and 184-192; and
2. Marks in which DYNO or DYNA appear alone, as a prefix with other
elements, or as part of a word other than “dynamic” or “dynamite”
(DYNO (stylized), DYNOSHRED, DYNO VITES, DYNAMEGA,
DYNAX, DYNA-TABS, DYNA-KOR PHARMACAL, DYNATRIM,
DYNAPLEXX, DYNAMAXX LIGHTS ON, DYNAMAXX LIGHTS
ON and design, DYNAMAXX LIVE LIFE TO THE MAXX,
DYNAMAXX B4 and design, DYNAPLEXX, and DYNAJET). 9
TTABVUE 68-72, 73-76, 82-85, 100-103, 121-126, 178-181, 209-214,
224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197, and
232-234.
The marks in the first category have no probative value because neither of the
subject marks contains the word DYNAMIC or DYNAMITE. Cf. Inn at St. John’s,
126 USPQ2d at 1746 (discounting probative value of registrations of FIFTH DINING
Serial No. 87482673
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and FIFTH GROUP RESTURANTS and design on weakness of the term 5IVE in
cited mark 5IVESTEAK).
With respect to the second category, there are only three registered marks
consisting of or containing DYNO, and one of them is owned by the owner of the cited
registration. 9 TTABVUE 68-72, 73-75, 82-85.17 To the extent that the marks in this
category are considered for the purpose of assessing whether DYNO is conceptually
weak, two third-party registrations are far too few in number to constitute evidence
of such weakness that is “powerful on its face.” Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015). See Inn at St. John’s, 126 USPQ 2d at 1746
(four registrations and no use evidence found to be a “far cry from the large quantum
of evidence of third-party use and third-party registrations that was held to be
significant” in Jack Wolfskin and Juice Generation). These registrations do not show
that DYNO has a “descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak,” Juice Generation, 115 USPQ2d at 1674, and they
do not show that DYNO means something different from DYNA.
There are nine different DYNA formative marks.18 9 TTABVUE 100-103, 121-126,
178-181, 209-214, 224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197,
and 232-234. Eight of them use DYNA as a prefix in a manner consistent with the

17 Both DYNO-MINS, September 11, 2017 Office Action at TSDR 2, and DYNO VITES, 9
TTABVUE 82-85, are owned by Natural Organics Inc., and the marks are promoted together.
January 31, 2018 Response to Office Action at TSDR 7.
18 The four registrations of the DYNAMAXX formative marks have a common owner. 9
TTABVUE 178-181, 209-214, 224-228, 246-250.
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meaning of the term as “a combining form meaning ‘power,’ used in the formation of
compound words: dynamotor.” 10 TTABVUE 269-271 (DICTIONARY.COM).19
Collectively, these registrations reinforce the dictionary definition of the term, and
indicate that DYNA may be suggestive for dietary and nutritional supplements, but
like the DYNO registrations, they do not show that DYNA and DYNO have different
meanings when they are used in marks for those goods.
In the absence of evidence of use of the eight DYNA- prefix formative marks, they
tell us nothing about the extent to which “consumers would be familiar with the four-
letter element ‘DYNA’” for human supplements. 17 TTABVUE 8. They also tell us
little, if anything, about the extent to which consumers of DYNAMINE supplements
will be able to distinguish the DYNO-MINS mark for identical goods because they
are familiar with other DYNA-formative marks for supplements, especially because
none of the DYNA- prefix formative marks (DYNAMEGA, DYNA-TABS, DYNA-KOR
PHARMACAL, DYNATRIM, DYNAPLEXX, DYNAPLEXX, DYNAJET, and the
variants of DYNAMAXX) are as similar to the involved DYNAMINE and DYNO-
MINS marks as those marks are to each other.
2. MINE and MIN(S) Formative Marks
Applicant made of record a large number of registered -MINE and -MIN(S) suffix
formative marks for dietary and nutritional supplements to show that “members of
the consuming public are very familiar with goods in International Class 005 wherein
the mark is either a ‘mins’ or a ‘mine’ and would understand that these are different

19 The ninth DYNA formative mark is DYNAX. 9 TTABVUE 121-126.
Serial No. 87482673
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elements and not merely the singular or plural version of each other.” 17 TTABVUE
9. In the absence of evidence of use of these marks, they too tell us nothing about the
extent to which consumers would be familiar with them. They too also tell us little, if
anything, about the extent to which consumers of DYNAMINE supplements will be
able to distinguish the DYNO-MINS mark for identical goods because they are
familiar with other -MINE and -MIN-suffix formative marks for supplements, again
because the pertinent -MINE formative marks (FAMINE, TRUGLUTAMINE,
NITRAMINE, PYROXAMINE, GLUTALOEMINE, NAKED GLUTAMINE, POWER
GLUTAMINE, GLUTAMINE+PLUS, OEMINE, OSAMINE, CHOCAMINE,
COGNAMINE, NUSTAMINE, MENDAMINE, AVASTAMINE and design,
LITRAMINE, TEPAMINE, DEXAMINE, ALPHAMINE, GLUCOSAMINE PLUS,
ENDORPHAMINE, CHRNOMINE, WAKAMINE, TRIGOSAMINE, SUSTAMINE,
IZMINE, PERIMINE, METABROMINE, NUTRAMINE, INTESTAMINE,
ENZAMINE, and JUVAMINE) are dissimilar to DYNAMINE; the pertinent -MIN
formative marks (CHEWAMINS, INTRAMIN, HAIRTAMIN, ALTHYMIN,
SPECTRAMIN, CREATOMIN, DETOXAMIN, DENTYMINS, ACUMIN,
MICRONAMIN and design, NOOTROMINS, HERBAMIN, VITAMIN WAY,
VITAMIN WHEY, ORAMIN-P, BACMIN, RITAMINS, IONAMIN, TELOMIN,
INFLAMIN, ENDURAMIN, VERSAMIN, BELLAMINS, NATRIMIN, CYSTOMIN,
PROFERMIN, HEPANAMIN, WATERMINS, BETAMIN, THERACURMIN,
BIOBUMIN, BONEMINS, INFINIMIN, RETAMIN, LIQUIDMIN, SENTRAMIN,
ELEMIN, PHENTERAMIN, ACTAMIN, OMNIMIN, MOMSTAMIN, COLLAMIN,
Serial No. 87482673
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CAVACURMIN, MOOMIN, AQUAMIN and design, CIMIFEMIN, MEGA VITAMIN
and design, DOUBLEMIN, ALINAMIN, OXYTAMIN, and PIC-MINS), are dissimilar
to DYNO-MINS; and none of the marks in either category are as similar to
DYNAMINE or DYNO-MINS as those marks are to each other.
To the extent that the third-party registrations are relevant evidence under the
sixth DuPont factor, they do not support Applicant’s argument that “there are several
other marks within the dietary supplement class that are similar to Applicant’s Mark
and the Registered Mark,” and that these marks show that Applicant’s mark “is
sufficiently distinctive to designate the Applicant as the source of its goods within
this class.” 17 TTABVUE 20. We find that the sixth DuPont factor is neutral in our
analysis of the likelihood of confusion.
C. Similarity or Dissimilarity of the Marks
Applicant devotes the bulk of its main brief to the first DuPont factor, which it
argues “substantially outweighs any other relevant factors” and “is dispositive of the
issue of a likelihood of confusion.” 17 TTABVUE 5-6. Under this factor, we consider
“‘the similarity or dissimilarity of the marks in their entireties as to appearance,
sound, connotation and commercial impression.’” Palm Bay Imps., 73 USPQ2d at
1691 (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements
may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014) (citing In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB
1988)). “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
Serial No. 87482673
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such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). “The proper perspective on
which the analysis must focus is on the recollection of the average customer, who
retains a general rather than specific impression of marks.” In re i.am.symbolic, 127
USPQ2d 1627, 1630 (TTAB 2018) (citations omitted).20
“‘[S]imilarity is not a binary factor but is a matter of degree.’” In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)). Because the
goods are legally identical, “the degree of similarity between the marks necessary to
support a determination that confusion is likely declines.” i.am.symbolic, 127
USPQ2d at 1630 (citing Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673
F.3d. 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Viterra, 101 USPQ2d at 1908;
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); and
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1701 (Fed. Cir. 1992)).
1. Applicant’s and the Examining Attorney’s Arguments
(a) Applicant’s Arguments
Applicant argues that “the marks in their entireties, including their appearance,
sound, and connotation, are so dissimilar that this factor substantially outweighs any

20 Applicant describes the average customers of dietary supplements as “ordinary consumers
wishing to support their health/fitness goals.” 17 TTABVUE 19.
Serial No. 87482673
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other relevant factors.” 17 TTABVUE 5-6. Applicant repeatedly criticizes the
Examining Attorney’s analysis of similarity as being “based on the improper premise
and dissection of the Parties’ marks” into what Applicant calls the “syllables ‘DYN’
and ‘MIN’ in the Applicant’s Mark and ‘DYN’ and ‘MIN’ in the Registered Mark.” Id.
at 6. Applicant argues that the proper comparison of the marks takes into account
that Applicant’s mark consists of the terms “‘DYNA’ and ‘MINE,’ not three-letter
syllables,” while the cited mark “explicitly separates itself into the two elements
‘DYNO’ and ‘MINS.’” Id. Applicant contends that when the marks are viewed properly
in their entireties, “Applicant’s Mark DYNAMINE does not share any common
element with the cited registration for DYNO-MINS.” Id. at 9.
Applicant further argues that “the marks are visually and phonetically distinct,”
id. at 13, but does not explain how the marks are dissimilar in sound.21 With respect
to appearance, Applicant argues that because “Applicant’s goods are primarily sold
in a visual or self-service manner, such as on the internet,” and the cited registrant’s
“goods are sold primarily in a visual or self-service manner in a retail store,” id. at
13, both marks “are first, and primarily, encountered visually,” and that as a result,
“sound is not as important” as appearance in assessing the similarity of the marks.
Id. Applicant appears to argue that the marks are dissimilar in appearance because
consumers would notice the hyphen in the cited mark DYNO-MINS, which Applicant
claims divides the mark into its constituent elements DYNO and MINS and

21 Elsewhere in its main brief, Applicant appears to concede the marks’ similarity in sound
in claiming that “the visual impact of the mark predominates over” what Applicant calls any
“phonetic equivalent [sic],” 17 TTABVUE 8, and any “phonetic impact.” Id. at 14.
Serial No. 87482673
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“emphasizes that the first portion of the mark is the four-letter term ‘DYNO,’” id. at
7-8, while Applicant’s mark “is a one-word compound mark, DYNAMINE.” Id. at 8.
Finally, Applicant argues that the “connotations and commercial impressions of
the Applicant’s Mark and the Registered Mark are different and distinct, and this
fact alone is sufficient to prevent a likelihood of confusion.” Id. at 14. Applicant claims
that DYNAMINE connotes “that the products are for ‘my’ (i.e., the consumers’) ‘power’
or to help consumers find and extract their own power,” id. at 9, and that this
“meaning is further supported by the suggestive connotation to [sic] the word
‘dynamite,’ which itself means something explosive or someone with a spectacular
effect,” id.,22 while the cited mark “connotes, if anything, a minimum quantity of
‘dyno.’” Id. at 8.
(b) The Examining Attorney’s Arguments
The Examining Attorney argues that DYNAMINE and DYNO-MINS are similar
in all means of comparison. 19 TTABVUE 5. He notes that the “first seven letters of
the applied-for mark DYNAMINE are nearly identical to the first seven letters of the
registrant’s mark, DYNO-MINS,” and argues that “the applied-for mark appears to
be a singular form of the registrant’s mark.” Id. He further argues that “the marks
are comprised of phonetically similar syllables in an identical order,” and because
“both marks begin with DYN they both suggest a dynamic product,” id., and because
“both marks include the letters MIN they suggest a product that is a vitamin or

22 As discussed above, Applicant argues on reply that DYNAMINE has an entirely different
meaning. We have ignored Applicant’s argument regarding this alternative meaning because
we have excluded the materials on which it is based.
Serial No. 87482673
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includes vitamins.” Id. at 5-6. According to the Examining Attorney, because “both
marks include these similar components in the same order, separated by a similar
vowel sound, the marks as a whole are confusingly similar.” Id. at 6.
The Examining Attorney also rejects Applicant’s argument that the appearance
of the marks is more important that their sound because “[t]his argument directly
contradicts applicant’s statements indicating that the goods are a powdered
ingredient used in the manufacture of supplements sold through a complex trade
channel involving long-term negotiations.” Id. He argues that “the phonetic similarity
of the marks at issue should not be discounted” and that “[t]here is no correct
pronunciation of a mark because it is impossible to predict how the public will
pronounce a particular mark,” leading him to conclude that the “DYNAMINE and
DYNO-MINS portions of the marks in question could clearly be pronounced the
same.” Id.
2. Analysis of Similarity
(a) Appearance23
While not identical in appearance, the DYNAMINE and DYNO-MINS marks have
identical structures, as both contain a total of three syllables and eight letters, both
begin with four-letter, two syllable DYNA and DYNO prefixes, and both end with
four-letter, one-syllable MINE and MINS suffixes. Unlike in Applicant’s mark, the

23 Applicant’s argument that this means of comparison should be given greater weight than
a comparison of the marks in sound, 17 TTABVUE 13-14, is unfounded because it is based
on trade channel restrictions that are not present in the identifications of goods. As discussed
above, we must assume that the goods travel through all ordinary channels of trade for
supplements, and there is no evidence that those channels of trade make any one means of
comparison of the marks uniquely or particularly important.
Serial No. 87482673
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first two syllables of the cited mark are separated from the final syllable by a hyphen,
but Applicant places much more weight on that feature of the cited mark than it can
reasonably bear.
Consumers may notice the hyphen in DYNO-MINS when they first see the mark,
but “marks ‘must be considered . . . in light of the fallibility of memory’ and ‘not on
the basis of side-by-side comparison.’” St. Helena Hosp., 113 USPQ2d at 1085 (quoting
San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196
USPQ 1, 3 (CCPA 1977)). Consumers with fallible memories who have seen the cited
DYNO-MINS mark and who are then exposed to the DYNAMINE mark are unlikely
to recall that DYNO-MINS contains a hyphen when they picture that mark in their
mind’s eye. In any event, the Board has repeatedly held that the presence of a hyphen
in a mark does not meaningfully distinguish that mark from another mark with the
same or similar elements, but no hyphen. See, e.g., Mini Melts, Inc. v. Reckitt
Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016) (opposer’s mark MINI MELTS
found to be “essentially identical” in appearance to applicant’s mark MINI-MELTS
because “the hyphen in Applicant’s mark MINI-MELTS does not distinguish it from
Opposer’s mark”) (citing cases). We find that the DYNAMINE and DYNO-MINS
marks are similar in appearance, taking into account “the recollection of the average
customer, who retains a general rather than specific impression of marks.”
i.am.symbolic, 127 USPQ2d at 1630.
Serial No. 87482673
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(b) Sound
As discussed above, Applicant does not seriously contend that the marks are
dissimilar in sound. Aurally, the marks are also similar in structure, as both contain
three syllables beginning with the same consonants. Both marks begin with a syllable
pronounced as “die” followed by the syllables NA and NO, which can sound similar,
notwithstanding their different vowels, when they are verbalized. The DYNA- and
DYNO- prefixes thus could easily be heard to be identical or very similar.24
The final syllables in the marks are -MINE and -MINS, which could be
pronounced and heard differently depending on how the letter “I” in those syllables
is pronounced. The Examining Attorney is correct that generally “[t]here is no correct
pronunciation of a mark because it is impossible to predict how the public will
pronounce a particular mark,” 19 TTABVUE 6, but that principle makes exception
for situations in which a mark is a common English word. See Research in Motion
Ltd. v. Defining Presence Mfg. Co., 102 USPQ2d 1187, 1193 (TTAB 2012). Applicant
argues that its mark “ends in ‘MINE,’” which Applicant calls “a recognized word,” 17
TTABVUE 9, “meaning ‘something that belongs to me,’ the possessive case of ‘I,’ or
digging or extracting.” Id. As discussed below in connection with the marks’ meaning,
Applicant’s third-party registrations of -MINE suffix formative marks for
supplements suggest that the -MINE suffix in DYNAMINE will not be understood in

24 The hyphen in DYNO-MINS has no impact on how the mark is pronounced or heard. Mini
Melts, 118 USPQ2d at 1470 (citing Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d
358, 224 USPQ 119, 121 (6th Cir. 1984) (“The use of hyphens distinguishes between the two
marks only on a visual level since this difference is absent when the words are spoken”)).
Serial No. 87482673
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either of these dictionary senses, and thus will not necessarily be pronounced in the
manner of the English word “mine.” It is thus possible that the -MINE suffix in
Applicant’s mark will be pronounced as “MIN,” or in another manner that will
increase its similarity to -MINS, when the applied-for mark is verbalized.25
In any event, regardless of exactly how the -MINE and -MIN suffixes are
pronounced, the DYNAMINE and DYNO-MINS marks are more similar than
dissimilar when they are pronounced because of the very close aural similarity of
their prefix elements, again taking into account the recollection of the average
customer who must recall how the DYNO-MINS mark sounds when hearing the
DYNAMINE mark verbalized. We find that the marks are similar in sound.
(c) Connotation and Commercial Impression
There is no support in the record for Applicant’s claim that DYNAMINE connotes
“that the products are for ‘my’ (i.e., the consumers’) ‘power’ or to help consumers find
and extract their own power,” id. at 9,26 while DYNO-MINS “connotes, if anything, a
minimum quantity of ‘dyno.’” Id. at 8. The DYNA- prefix in Applicant’s mark is “a

25 In that regard, we note that the first mark in Applicant’s group of -MINE suffix formative
marks, FAMINE, 10 TTABVUE 292-295, consists of an English word in which the -MINE
suffix is ordinarily pronounced as “MIN.” Other marks in the group, such as NAKED
GLUTAMINE (GLUTAMINE disclaimed) and POWER GLUTAMINE (GLUTAMINE
disclaimed), 11 TTABVUE 8-14, 25-30, and GLUCOSAMINE PLUS (GLUCOSAMINED
disclaimed), id. at 122-125, include English words in which the -MINE suffix is ordinarily not
pronounced in the manner of the possessive pronoun “mine,” but rather in the manner of the
English word “mean.”
26 As discussed above, Applicant argues on reply that DYNAMINE has an entirely different
meaning relating to “butterflies found in South America.” 20 TTABVUE 2. Applicant claims
that “the relevant consumer upon viewing the word ‘dynamine’ will understand the word to
be a name for butterflies and will not associate the mark with the cited mark ‘DYNO-MINS.’”
Id. We have given no consideration to this alternative meaning because we have excluded
the evidence on which it is based.
Serial No. 87482673
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combining form meaning ‘power,’ used in the formation of compound words:
dynamotor,” 10 TTABVUE 269-271 (DICTIONARY.COM), and, in the context of
supplements, the similarly appearing and sounding DYNO- prefix in DYNO-MINS
has the same connotation of power in the absence of evidence of some other
established meaning.
The suffixes -MINE and -MINS added to DYNA- and DYNO- respectively do not
give the marks different meanings when the marks are considered in their entireties.
To the extent that the third-party registrations of -MINE and -MIN formative marks
show anything, it is that when those suffixes appear in marks for dietary and
nutritional supplements, they do not connote the dictionary meanings of the suffixes
argued by Applicant, a possessive pronoun or “digging or extracting” in the case of -
MINE, 17 TTABVUE 9, and “the least quantity of anything” in the case of -MINS. Id.
at 8.
It is self-evident that the -MINE suffix in these scientific- and medical-sounding
marks for dietary and nutritional supplements has nothing to do with mining and
does not represent the possessive pronoun. Instead, the -MINE suffix in the
DYNAMINE mark connotes that supplements sold under that mark involve
substances that are beneficial to one’s health.27
The “least quantity of anything” meaning ascribed by Applicant to the -MINS
suffix in the DYNO-MINS mark is similarly unlikely to be perceived by consumers of

27 For example, the goods sold under the NAKED GLUTAMINE, POWER GLUTAMINE, and
GLUCOSAMINE PLUS marks are supplements consisting of such substances.
Serial No. 87482673
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supplements sold under the mark. The noun “supplement” means “something that
completes or makes an addition,”28 and dietary and nutritional supplements add
something to one’s diet by definition. It is utterly implausible that consumers would
view any -MIN(S) suffix formative mark for supplements as communicating that
those goods provide “the least quantity of anything,” or that the cited mark DYNO-
MINS connotes, in Applicant’s words, “a minimum quantity of ‘dyno.’” Id. at 8. The
registered -MIN(S) suffix formative marks suggest instead that it is much more likely
that consumers would understand -MINS as a shorthand for, or allusion to, vitamins,
which Applicant acknowledges are a form of dietary supplement. 17 TTABVUE 16.
Indeed, some of the -MIN suffix formative marks made of record by Applicant
expressly reference vitamins (VITAMIN WAY, 12 TTABVUE 121-127, VITAMIN
WHEY, id. at 128-134, and MEGA VITAMIN and design, 13 TTABVUE 100-105),
while others containing the –MINS suffix allude to vitamins (CHEWAMINS, 12
TTABVUE 57-60,29 DENTYMINS, id. at 94-97, NOOTROMINS, id. at 113-116,30
RITAMINS, id. at 149-152,31 WATERMINS, id. at 228-232, and BoneMins, id. at 259-
262).32 Like the -MINE suffix in Applicant’s DYNAMINE mark, the -MINS suffix in

28 MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on July 22, 2019).
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed form or regular fixed editions, Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
29 The identification of goods in this registration includes “vitamin supplements.”
30 The identification of goods in this registration includes “vitamins in the nature of
nootropics, namely, cognitive enhancing supplements for human consumption.”
31 The identification of goods in this registration includes “vitamins.”
32 The identification of goods in this registration includes “vitamin and mineral supplements.”
Serial No. 87482673
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the DYNO-MINS mark connotes that supplements sold under that mark involve
substances (in this case, probably vitamins) that are beneficial to one’s health. The
DYNAMINE and DYNO-MINS mark are similar in connotation and commercial
impression.
Although there are differences between the DYNAMINE and DYNO-MINS
marks, we find that they are more similar than different in appearance, sound, and
meaning when considered in their entireties. Given that the goods are identical and
“the degree of similarity between the marks necessary to support a determination
that confusion is likely declines,” i.am.symbolic, 127 USPQ2d at 1630, the
DYNAMINE and DYNO-MINS 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. The
first DuPont factor supports a finding of a likelihood of confusion.
D. Purchase Conditions
The fourth DuPont factor concerns the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse v. careful, sophisticated purchasing.” DuPont, 177
USPQ at 567. Applicant argues that the purchasers of its dietary and nutritional
supplements are “highly sophisticated business people” who are “owners of dietary
supplement manufacturing companies who are responsible for running businesses”
and who “make the decision to purchase the Applicant’s ingredient only after
negotiating price, delivery amount, time for delivery, and many other issues.” 17
TTABVUE 18. Like Applicant’s arguments regarding the goods and their channels of
Serial No. 87482673
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trade, this argument is unavailing because it is based on limitations or restrictions
that do not appear in Applicant’s identification of goods.33
As noted above, Applicant describes the average customers of dietary supplements
as “ordinary consumers wishing to support their health/fitness goals.” 17 TTABVUE
19. Even assuming that some of those consumers may exercise a heightened degree
of care because supplements are ingested and are directed to achieving “health/fitness
goals,” our decision must “be based ‘on the least sophisticated potential purchasers.’”
Stone Lion, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus.
S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds,
2014 WL 343267 (TTAB Jan. 22, 2014)). There is nothing in the record to show that
the least sophisticated consumers of supplements will exercise anything more than
ordinary care in purchasing the goods, and Applicant acknowledges that the goods
“are more likely to be purchased impulsively” than other goods. 17 TTABVUE 19. The
fourth DuPont factor is thus neutral in our analysis of likelihood of confusion.

33 Applicant cites HerbalScience for the proposition that “dietary supplement purchasers have
been found to be sophisticated purchasers.” 17 TTABVUE 19. Once again, the case does not
aid Applicant. The Board found in HerbalScience that the applicant’s “identification of goods
is sufficient to show that its goods would be sold to manufacturers of pharmaceuticals,
nutraceuticals and the like,” and the “buyers of such goods, who would be using these
ingredients for the products that they make and sell, must be assumed to be knowledgeable
and careful purchasers.” HerbalScience, 96 USPQ2d at 1324. As discussed above, Applicant’s
“dietary and nutritional supplements” identification is not restricted in the manner of the
applicant’s identification in HerbalScience. Notably, the Board also found that the
registrant’s unrestricted “dietary and nutritional supplements” were goods that “can be
purchased by ordinary consumers on impulse,” id., and, consistent with that finding,
Applicant acknowledges that such dietary supplements “are more likely to be purchased
impulsively by ordinary consumers wishing to support their health/fitness goals.” 17
TTABVUE 19.
Serial No. 87482673
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E. Conclusion
The goods, channels of trade, and classes of purchasers are identical, and the least
sophisticated purchasers of dietary and nutritional supplements will exercise no more
than ordinary care in purchasing the goods. Although there are some differences
between the marks, their similarities outweigh their differences, and are sufficient to
support a finding of a likelihood of confusion when the marks are used for identical
goods. We find that prospective purchasers of DYNAMINE dietary and nutritional
supplements who are familiar with the DYNO-MINS mark for identical goods are
likely to believe mistakenly that the DYNAMINE supplements originate with, or are
authorized or sponsored by, the source of DYNO-MINS supplements.
Decision: The refusal to register is affirmed.