PIV Enterprises, Inc.

Trademark Trial and Appeal Board

Feb 10, 2017

No. 86246318 (T.T.A.B. Feb. 10, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: February 10, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re PIV Enterprises, Inc.
_____

Serial No. 86246318
_____

Michael L. Lovitz of Risso & Associates,
for PIV Enterprises, Inc.
Ryan M. Witkowski, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____

Before Bergsman, Shaw and Adlin,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
PIV Enterprises, Inc. (“Applicant”) seeks registration on the Principal Register of
the mark MAGNUM DETOX (stylized), shown below,

for the goods listed below:
Mouth wash, in Class 3; and
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Dietary and nutritional Supplements; medicinal drinks,
namely, body cleansing drinks; nutritional supplements,
namely, detoxification soft nutritional supplements in the
form of gels; dietary and nutritional supplements, namely,
blood, urine, and saliva body cleansing capsules; drug test
kits comprised of medical diagnostic reagents and assays
that test for the presence of drugs; none of the foregoing
containing nitric oxide boosters, in Class 5.1
Applicant disclaimed the exclusive right to use the word “Detox.”
The Trademark Examining Attorney has refused registration of Applicant’s mark,
in Class 5 only, 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 MAGNUM BLOOD-
FLOW SEXUAL PEAK PERFORMANCE (standard characters) for “dietary
supplements; food supplements; multi-vitamin and mineral supplements, all
containing nitric-oxide boosters,” in Class 5, as to be likely to cause confusion.2
Registrant disclaimed the exclusive right to use “Blood-Flow Sexual Peak
Performance.”
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
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

1 Application Serial No. 86246318 was filed on April 8, 2014, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a). With respect to the goods in Class 3, Applicant claimed
first use anywhere and use in commerce since at least as early as August 31, 2007. With
respect to the goods in Class 5, Applicant claimed first use anywhere as of June 1, 2005 and
first use in commerce as of August 15, 2005.
2 Registration No. 4356805; registered June 25, 2013.
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likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each
du Pont factor that is relevant and for which there is evidence of record. See M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.
2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d
1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re i.am.symbolic, llc, 116 USPQ2d
1406, 1409 (TTAB 2015).
A. The strength of the registered mark.

Applicant argues that the word “Magnum,” shared by both Applicant’s mark
MAGNUM DETOX and the mark in the cited registration MAGNUM BLOOD-FLOW
SEXUAL PEAK PERFORMANCE, is a weak term that is entitled to only a narrow
scope of protection or exclusivity of use. In support of that argument, Applicant
submitted copies of the following registrations:
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• Registration No. 2761021 for the mark MAGNUM (typed drawing) for
“nutritionally fortified tonic water enhanced with herbs and/or vitamins to increase
sexual intimacy”;3
• Registration No. 4854930 for the mark MAGNUMSOLACE (standard
characters) for "mineral supplements”;4 and
• Registration No. 1846450 for the mark 44 MAGNUM (typed drawing)
Registration No. 1956672 for the mark 357 HR MAGNUM (typed drawing), owned by
the same entity, and both for “pharmaceuticals, namely, over-the-counter
stimulants.”5
Evidence of extensive registration and use by others of a term on the same or very
similar goods can be “powerful” evidence of weakness. See 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); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). The purpose of introducing
third-party uses is to show that customers have become so conditioned by a plethora
of such similar marks that they have learned to distinguish between different marks
on the basis of minute distinctions. Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).

3 May 13, 2016 Response to Office Action, pp. 12 and 15.
4 Id. at p. 15.
5 Id. at p. 17.
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In this case, Applicant’s evidence of purported weakness is not persuasive. Only
two of the third-party registrations refer to nutritional supplements (i.e., MAGNUM
(typed drawing) for “nutritionally fortified tonic water enhanced with herbs and/or
vitamins to increase sexual intimacy” and MAGNUMSOLACE (standard characters)
for "mineral supplements”). See Nat’l Cable Television Ass’n, Inc. v. Am. Cinema
Editors, Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1430 (Fed. Cir. 1991) (discounting the
probative value of third-party use where such uses were unrelated to services at
issue); SBS Products Inc. v. Sterling Plastic & Rubber Products Inc., 8 USPQ2d 1147,
1149 n.6 (TTAB 1988) (“[E]ven if evidence of such third-party use were submitted, it
would be of no aid to respondent herein where the third-party usage was for goods
unrelated to either petitioner's skin care products or respondent's stuffing box
sealant”). By comparison, in Juice Generation, there were at least twenty-six relevant
third party uses and registrations of record, 115 USPQ2d at 1672 n.1, and in Jack
Wolfskin, there were at least fourteen, 116 USPQ2d at 1136 n.2.
Further, Applicant has not presented evidence showing that the third-party
marks are in use, only that they are registered.6 While we may assume that use-based

6 In its May 14, 2016 Request for Reconsideration (4 TTABVUE 9), Applicant asserted that
“a search entered in the Google search engine for the terms ‘magnum’ and ‘supplements’
produces more than 525,000 results” demonstrating that “the word ‘magnum’ is often used
in the supplements … industry.” However, Applicant did not make the results of record and
statements made in a brief cannot take the place of evidence. In re Simulations Publ’n, Inc.,
521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (where appellant argued that the magazines
at issue deal with unrelated subject matter, the court held that “[s]tatements in a brief cannot
take the place of evidence.”); In re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006 (TTAB 2014)
(statements of applicant’s counsel regarding how applicant and its competitors sell product
do not take the place of statements more appropriately made by applicant).
Moreover, Applicant’s assertion is akin to providing a list of search results. A list of Internet
search results generally has little probative value, because such a list does not show the
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registrations issued only after their owners asserted to the USPTO that the marks
were in use, the registrations themselves do not directly demonstrate that the marks
are in fact present in the marketplace, the extent to which they have been used, or
the extent to which customers have been exposed to them. See Palm Bay v. Veuve
Clicquot Ponsardin, 73 USPQ2d at 1693 (quoting Scarves by Vera, Inc. v. Todo
Imports, Ltd., 544 F.2d 1167, 192 USPQ 289, 294 (2d Cir. 1976) (“The significance of
third-party trademarks depends wholly upon their usage. Defendant introduced no
evidence that these trademarks were actually used by third parties, that they were
well promoted or that they were recognized by consumers.”)).
In this case, Applicant’s evidence does not rise to the level of demonstrating that
the third-party registrations are so widespread as to “condition” the consuming
public. In other words, Applicant’s evidence is insufficient for us to find that
consumers are so used to seeing marks containing the word MAGNUM in connection
with nutritional supplements that such use undermines the strength of Registrant’s
mark.

context in which the term is used on the listed web pages. See In re Bayer AG, 488 F.3d 960,
967, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (deeming Google search results that provided
very little context of the use of ASPIRINA to be “of little value in assessing the consumer
public perception of the ASPIRINA mark”); In re Tea and Sympathy, Inc., 88 USPQ2d 1062,
1064 n.3 (TTAB 2008) (finding truncated Google search results entitled to little probative
weight without additional evidence of how the searched term is used); In re Thomas, 79
USPQ2d 1021, 1026 (TTAB 2006) (rejecting an applicant’s attempt to show weakness of a
term in a mark through citation to a large number of Google “hits” because the “hits” lacked
sufficient context); In re Fitch IBCA Inc., 64 USPQ2d 1058, 1060 (TTAB 2002) (noting that
“[e]vidence of actual use of a phrase by a website has far greater probative value” than a
search summary).

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Applicant also asserts that during the prosecution of Registrant’s application for
registration, Registrant argued that the word “Magnum” “should be afforded only a
narrow scope of protection given its common use for supplements” and that
“Magnum” was “the least potent word” in Registrant’s mark.7 Because Applicant did
not submit the prosecution history of Registrant’s application into this record, we
have nothing more than Applicant’s statements made in a brief, which cannot take
the place of evidence. In re Simulations Publ’n, Inc., 187 USPQ at 148; In re U.S.
Tsubaki, Inc., 109 USPQ2d at 2006.
Even if we consider counsel’s argument, it does not persuade us that the word
“Magnum” is a weak term, entitled to only a narrow scope of protection or exclusivity
of use. As the CCPA said in Interstate Brands Corp. v. Celestial Seasonings, Inc., 576
F.2d 926, 198 USPQ 151, 154 (CCPA 1978),
[T]hat a party earlier indicated a contrary opinion
respecting the conclusion in a similar proceeding involving
similar marks and goods is a fact, and that fact may be
received in evidence as merely illuminative of shade and
tone in the total picture confronting the decision maker. To
that limited extent, a party's earlier contrary opinion may
be considered relevant and competent. Under no
circumstances, may a party's opinion, earlier or current,
relieve the decision maker of the burden of reaching his
own ultimate conclusion on the entire record.
We place limited weight on counsel’s arguments because we cannot be sure that
we know all the circumstances confronting Registrant and the Trademark Examining
Attorney during the prosecution of Registrant’s application. In other words, we do not

7 Applicant’s Brief, p. 17 (7 TTABVUE 18). See also Applicant’s May 14, 2016 Request for
Reconsideration (4 TTABVUE 10).
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have the “total picture confronting the decision maker.” For example, although
counsel identified three MAGNUM formative marks, he did not identify their
description of goods.
Moreover, as noted above, the evidence Applicant made of record (i.e., the four
third-party registrations) is not nearly voluminous enough to support a finding that
the word “Magnum” is a weak term when used in connection with nutritional
supplements.
Finally, even if “Magnum” is suggestive, it is still entitled to protection against
the registration of a similar mark for closely related goods. See King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“The
likelihood thereof is to be avoided, as much between “weak” marks as between
“strong” marks, or as between a “weak” and a “strong” mark.”); Top Tobacco LP v.
North Atlantic Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011).
B. The similarity or dissimilarity of the marks.

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.
“The proper test is not a side-by-side comparison of the marks, but instead ‘whether
the marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012); see also San Fernando Electric Mfg. Co. v. JFD
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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 mem.,
972 F.2d 1353 (Fed. Cir. 1992).
The marks are similar because they share the word “Magnum.” They differ in part
because Applicant’s mark is stylized. However, Registrant’s mark is in standard
characters. Because the registered mark is in standard characters, it may be
displayed in any font style, size or color. Registrant’s mark could at any time be
displayed in a manner similar to Applicant’s mark. See In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012); Citigroup Inc. v. Capital City Bank
Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy
Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that a
mark in standard character format (typed) is distinct from a mark in a logo format;
“[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted
by that party” (emphasis in original)); In re RSI Systems, LLC, 88 USPQ2d 1445,
1448 (TTAB 2008); In re Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB
1988). Therefore, the stylization of Applicant’s mark does not serve to distinguish the
marks.
The marks also differ in that the word “Magnum” in Applicant’s mark is followed
by the word “Detox” and the word “Magnum” in the registered mark is followed by
the words “Blood-Flow Sexual Peak Performance.” Applicant disclaimed the exclusive
right to use the word “Detox” in response to the requirement for a disclaimer on the
ground that the word “Detox” is merely descriptive of the purpose of Applicant’s
Serial No. 86246318
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nutritional supplements (i.e., “applicant is providing goods used in detox to rid the
body of poisonous substances”).8 Likewise, the phrase “Blood-Flow Sexual Peak
Performance” in the registered mark is merely descriptive because it directly conveys
to consumers that the purpose of Registrant’s product “is directed to increasing the
blood flow to a person’s genital region to enhance an erection and sexual
performance.”9 This leads us to find that the word “Magnum” is the dominant part of
both Applicant’s mark and the registered mark. It is well-settled that disclaimed,
descriptive matter may have less significance in likelihood of confusion
determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405, 1407, 41
USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d
1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”). There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
such as a common dominant element, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 224 USPQ
at 751.

8 May 5, 2014 Office Action and the November 4, 2014 Response to an Office Action.
9 November 4, 2014 Response to an Office Action.
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Further reinforcing the significance of the word “Magnum” as the dominant part
of both marks is its location as the first part of the marks. See Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Fondee En 1772, 73 USPQ2d at 1692 (“Veuve” is the
most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the label); Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)
(upon encountering the marks, consumers will first notice the identical lead word);
Presto Prod. Inc. v. Nice-Pak Prod., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is
often the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered”).
The word “Magnum” is defined, inter alia, as “Informal. Unusually great in power
or size: a magnum spotlight; a magnum dosage.”10 The word “Magnum” means and
engenders the commercial impression that the supplements identified by the marks
are extremely effective or powerful. Thus, the marks have similar meanings and
commercial impressions.
Applicant argues that by focusing on the word “Magnum” as the dominant part of
the marks, we are ignoring the significance of the word “Detox” in Applicant’s mark
and the words “Blood-Flow Sexual Peak Performance” in the registered mark.11 We
disagree. We have considered the marks in their entireties. However, we have given
greater weight to the word “Magnum” because “Detox” and “Blood-Flow Sexual Peak

10 Dictionary.com based on the Random House Dictionary (2017).
11 Applicant’s Brief, pp. 9-13 (7 TTABVUE 10-14).
Serial No. 86246318
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Performance” are descriptive and, therefore, consumers are more likely to look to the
word “Magnum” as the source identifying term in the marks and interpret the other
wording as describing the nature or purpose of the products. For example, MAGNUM
DETOX identifies MAGNUM brand supplements for detoxing one’s body and
MAGNUM BLOOD-FLOW SEXUAL PEAK PERFORMANCE identifies MAGNUM
brand supplements for increasing one’s sexual potency.
Applicant argues that the dominant portion of Registrant’s mark is the phrase
“Sexual Peak Performance” not the word “Magnum.”12 To support its argument,
Applicant submitted a copy of Registrant’s package displaying Registrant’s mark as
shown below:13

Consumer[s] encountering Registrant’s products would call
for such products using the perceived trademark “SEXUAL
PEAK PERFORMANCE”, and concluding that the phrase

12 Applicant’s Brief, p. 14 (7 TTABVUE 15).
13 November 4, 2014 Response to Office Action, p. 8.
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“MAGNUM BLOOD-FLOW” merely describes a
characteristic or benefit of the product when used.14
There are several problems with Applicant’s argument. First, as discussed above,
the registered mark is in standard character form which means that it can be
displayed in any font style, size or color, including a stylization resembling
Applicant’s mark.
Second, Registrant’s trade dress as shown on its package noted above may provide
evidence that a word mark projects a similar commercial impression, but it cannot
weigh against finding that the marks are similar. “The reason is that such dress
might well be changed at any time; only the word mark itself is to be registered.”
Kimberly Clark Corp. v. H. Douglas Enterprises, Ltd., 774 F.2d 1144, 1147, 227 USPQ
541, 543 (Fed. Cir. 1985); see also Specialty Brands, Inc. v. Coffee Bean Distributors,
Inc., 748 F.2d 669, 223 USPQ 1281, 1284 (Fed. Cir. 1984). As our primary reviewing
court has stated:
Ordinarily, for a word mark we do not look to the trade
dress, which can be changed at any time. Vornado, Inc. v.
Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342
(CCPA 1968). But the trade dress may nevertheless
provide evidence of whether the word mark projects a
confusingly similar commercial impression.
Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1458
(Fed. Cir. 1992).
Finally, Registrant disclaimed the exclusive right to use the phrase “Blood-Flow
Sexual Peak Performance” on the ground that it is merely descriptive of the purpose

14 Applicant’s Brief, p. 14 (7 TTABVUE 15).
Serial No. 86246318
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or function of Registrant’s product and, therefore, it is the word “Magnum” that
carries the trademark significance.
In view of the foregoing, we find that the marks are similar in their entireties in
terms of appearance, sound, connotation and commercial impression.
C. The similarity or dissimilarity and nature of the goods and established, likely-
to-continue channels of trade.

Applicant is seeking to register its mark for, inter alia, “Dietary and nutritional
Supplements; …; none of the foregoing containing nitric oxide boosters.”15 The
description of goods in the cited registration is “dietary supplements; food
supplements; multi-vitamin and mineral supplements, all containing nitric-oxide
boosters.”
Semicolons are used in a description of goods to separate distinct categories of
goods within a single class.16
For example, "cleaners, namely, glass cleaners, oven
cleaners, and carpet cleaners; deodorants for pets" is an
acceptable identification in Class 3. In this example, the
word "cleaners" names the category covering "glass
cleaners, oven cleaners, and carpet cleaners." The
semicolon prior to "deodorants for pets" indicates that the
deodorants are a separate category of goods from the
cleaners. See In re Midwest Gaming & Entm’t LLC, 106
USPQ2d 1163, 1166 (TTAB 2013) (finding that, because a
semicolon separated the two relevant clauses in

15 May 14, 2016 Response to Office Action (4 TTABVUE). In its response, Applicant explained
that it amended its description of goods in Class 5 to confirm that none of Applicant’s goods
contain nitric oxide boosters. (May 14, 2016 Response to Office Action, p. 6; 4 TTABVUE 6).
Subsequently, Applicant relied on that restriction to distinguish Applicant’s goods and
Registrant’s goods which purportedly contain nitric-oxide boosters and to contend that the
goods at issue are not related. (May 14, 2016 Response to Office Action, p. 10; 4 TTABVUE
10).
16 TMEP § 1402.01(a) (January 2017).
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registrant’s identification, its "restaurant and bar services"
is a discrete category of services that stands alone and
independently as a basis for likelihood-of-confusion
analysis, and is not connected to nor dependent on the
services set out on the other side of the semicolon).17
The restriction “all containing nitric-oxide boosters,” in Registrant’s description of
goods applies only to “multi-vitamin and mineral supplements.” The restriction does
not apply to the “dietary supplements.” Therefore, we are required to give “full sweep”
to Registrant’s “dietary supplements.” Paula Payne Prods. Co. v. Johnson Publ’g Co.,
Inc., 473 F.2d 901, 177 USPQ 76, 77-78 (CCPA 1973). Registrant’s “dietary
supplements” are presumed to encompass all “dietary supplements” of the nature and
type identified in the registration, including those containing nitric-oxide boosters. 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.’”); In re Jump Designs
LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). Accordingly, Applicant’s goods and
Registrant’s goods are in part identical.18
Because the goods described in the application and the cited registration are in
part identical, we must presume that the channels of trade and classes of purchasers
are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.

17 Id.
18 We need not consider whether each of Applicant’s identified goods is related to Registrant’s
goods; for purposes of a du Pont analysis, it is sufficient if likelihood of confusion is found
with respect to use of an applicant’s mark in connection with any product in a particular
International Class. See Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335,
209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB
2015); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
Serial No. 86246318
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2012) (legally identical goods are presumed to travel in same channels of trade to
same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ
721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade
and classes of purchasers are considered to be the same); United Global Media Grp.,
Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028
(TTAB 2011).
Applicant did not appreciate how the use of semicolons affects the construction of
the description of goods and that Registrant’s dietary supplements are not restricted
to dietary supplements containing nitric-oxide boosters. While acknowledging that
both products are “nutritional supplements,”19 Applicant asserts that the products
are different and, therefore, they are not related for purposes of determining
likelihood of confusion.20
The significant differences between the nature of the
products and how they are used can be easily capsulized –
the products sold by Registrant are supplements taken by
consumers with the purposes of adding certain vitamins,
minerals and nutrients to the body, resulting in the benefit
of enhanced sexual performance. In contrast, the very
nature of detoxification products sold by Applicant are that
they necessarily remove toxins and other elements from
the user’s body. Thus, the goods cannot be said to be
“related” as the respective purposes are polar opposites,
one adding benefits to the user, while the other masks or
eliminates harmful toxins. … After considering this
difference, along with other differences between the
respective marks, it is apparent that the goods are

19 Applicant’s Brief, p. 19 (7 TTABVUE 20).
20 Applicant’s Brief, pp. 19-21 (7 TTABVUE 20-22
Serial No. 86246318
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sufficiently distinct such that there is no likelihood of
confusion.21
Giving Applicant the benefit of the doubt and considering its argument, Applicant
has improperly argued that consumers will not confuse Applicant’s dietary
supplements without nitric-oxide boosters and Registrant’s dietary supplements with
nitric-oxide boosters. The issue is not whether the goods will be confused with each
other, but rather whether the public will be confused as to their source. See Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) ("[E]ven
if the goods in question are different from, and thus not related to, one another in
kind, the same goods can be related in the mind of the consuming public as to the
origin of the goods. It is this sense of relatedness that matters in the likelihood of
confusion analysis."); In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689
(Fed. Cir. 1993); Safety-Kleen Corp. v. Dresser Indus., Inc., 518 F.2d 1399, 1403–04,
186 USPQ 476, 480 (C.C.P.A. 1975); In re Ass’n of the U.S. Army, 85 USPQ2d 1264,
1270 (TTAB 2007). It is sufficient that the goods of the applicant and the registrant
are related in some manner or that the conditions surrounding their marketing are
such that they are likely to be encountered by the same persons under circumstances
that, because of the marks used in connection therewith, would lead to the mistaken
belief that they originate from the same source. See, e.g., On-line Careline Inc. v.
America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000) (holding ON-
LINE TODAY for Internet connection services and ONLINE TODAY for an electronic

21 Applicant’s Brief, p. 20 (7 TTABVUE 21).
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publication likely to cause confusion); In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (holding MARTIN’S for wheat bran and
honey bread, and MARTIN’S for cheese, likely to cause confusion); Weider Publ'ns,
LLC v. D&D Beauty Care Co., 109 USPQ2d 1347 (TTAB 2014) (holding SHAPES for
a variety of beauty salon, day spa, and health spa services likely to cause confusion
with SHAPE for magazines where the services are of the type normally featured in
the magazines). In this regard, the third-party websites submitted by the Trademark
Examining Attorney show that the sale of a full line of vitamins and dietary
supplements are sold by various entities under a single mark. See e.g., the Puritan’s
Pride website (puritan.com),22 the Vitacost.com website,23 the Emerson Ecologics
website (emersonecologics.com),24 the GNC website (gnc.com),25 and the Amway
website (amyway.com).26
These websites also show that vitamin, mineral and dietary supplement retailers
sell a full-line of such products and that, therefore, Applicant’s products and
Registrant’s products move in some of the same channels of trade.
D. The conditions under which and buyers to whom sales are made, i.e., ‘impulse’
vs. careful, sophisticated purchasing.

22 May 5, 2014 Office Action, p. 105.
23 Id. at 108; November 14, 2015 Office Action, p. 230.
24 May 5, 2014 Office Action, p. 111.
25 November 14, 2015 Office Action, p. 234.
26 Id. at 245.
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Applicant points out that the purchase of dietary supplements entails careful
consideration and would not be done on impulse.27 This is likely true, given that the
customers would likely exercise a relatively high degree of attention to the purchase
of dietary supplements that they intend to ingest to improve their health.
We do not agree with Applicant’s argument that this degree of care would lead
customers to readily appreciate that Applicant’s MAGNUM DETOX dietary
supplements and Registrant’s MAGNUM BLOOD-FLOW SEXUAL PEAK
PERFORMANCE dietary supplements emanate from different sources. As we have
explained, we must presume that Applicant’s and Registrant’s dietary supplements
overlap. Therefore, the relevant question is whether confusion would be likely if both
Applicant and Registrant offer dietary supplements under their marks.
We agree with Applicant that the degree of care exercised by the relevant
customers reduces the likelihood of confusion; but it does not outweigh the similarity
of the marks and the similarity of the goods.
E. The nature and extent of any actual confusion.
Applicant contends that Applicant and Registrant have been selling their dietary
supplements contemporaneously for over five years without any reported instances
of confusion.28 In this ex parte proceeding, in which Registrant is not a participant
and cannot respond to Applicant’s claims, Applicant’s uncorroborated statement that
there are no known instances of actual confusion is of little or no evidentiary value.

27 Applicant’s Brief, p. 21 (7 TTABVUE 22).
28 Applicant’s Brief, p. 18 (7 TTABVUE 19).
Serial No. 86246318
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See In re Majestic Distilling Co., Inc., 65 USPQ2d at 1205 (“uncorroborated
statements of no known instances of actual confusion are of little evidentiary value”);
see also In re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973)
(stating that self-serving testimony of applicant’s corporate president’s unawareness
of instances of actual confusion was not conclusive that actual confusion did not exist
or that there was no likelihood of confusion). The lack of evidence of actual confusion
carries little weight, J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ
435, 438 (CCPA 1965), especially in an ex parte context. In any event, the record is
devoid of probative evidence relating to the extent of use of Applicant’s and
Registrant’s marks and, thus, whether there have been meaningful opportunities for
actual confusion to have occurred in the marketplace. See Cunningham v. Laser Golf
Corp., 55 USPQ2d at 1847; Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768,
1774 (TTAB 1992). Accordingly, the du Pont factor regarding the nature and extent
of any actual confusion is neutral.
F. Balancing the factors.
Because we find that the marks are similar, the goods are related, and we must
presume that the goods move in the same channels of trade, we find that Applicant’s
mark MAGNUM DETOX (stylized) for, inter alia, “dietary and nutritional
Supplements … containing nitric oxide boosters” is likely to cause confusion with the
registered mark MAGNUM BLOOD-FLOW SEXUAL PEAK PERFORMANCE for,
inter alia, “dietary supplements.”
Serial No. 86246318
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Decision: The refusal to register Applicant’s MAGNUM DETOX (stylized) is
affirmed.