Recover Life Brands, LLC

Trademark Trial and Appeal Board

Aug 9, 2018

No. 87142591 (T.T.A.B. Aug. 9, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 9, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Recover Life Brands, LLC
_____
Serial Nos. 87142591 & 87142625
_____
Brian J. Pangrle of Pangrle Patent, Brand & Design Law, P.C.
for Recover Life Brands, LLC

Caroline E. Wood, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_____
Before Ritchie, Shaw, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
In two applications that have been consolidated on appeal, Recover Life Brands,
LLC (“Applicant”) seeks registration on the Principal Register of the following two
marks,
Serial Nos. 87142591 & 87142625
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and , both for “non-alcoholic,
vitamin, mineral and/or herbal fortified beverages for use as a nutritional
supplement” in International Class 5 and “non-alcoholic beverages containing fruit
extract and/or herbal juice” in International Class 32.1
In each case, the Examining Attorney refused registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the
following two registered marks, which have different owners:
• RECOVER in standard characters for “Dietary and nutritional supplements
for post-workout muscle repair by bodybuilders and mixed-martial artists” in
International Class 5 (the ‘790 Registration).2

• RE-COVER in standard characters for “Energy drinks” in International Class
32 (the ‘914 Registration).3

Once the Examining Attorney made the refusals final, Applicant appealed. After
Applicant filed a brief in each case, the Board granted the Examining Attorney’s
motion to consolidate the cases on appeal. The appeals have been fully briefed.

1 Application Serial Nos. 87142591 and 87142625 were filed August 18, 2016 under Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in
commerce. Their descriptions of the marks, respectively, are: “The mark consists of R, E, C,
O, V, R, a backward E and a graphic of a drop” and “The mark consists of R, E, C, O, V, R, a
backward E and a bar.”
2 Registration No. 3911790 issued on the Principal Register on January 25, 2011; Section 8
affidavit accepted.
3 Registration No. 4233914 issued on the Principal Register on October 30, 2012.
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II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944 (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.”).
A. The Relatedness of the Goods
As to the goods, we must determine whether their degree of relatedness rises to
such a level that consumers would mistakenly believe Applicants goods emanate from
the same source as those in the cited registrations. The test is not whether consumers
would be likely to confuse the goods, but rather whether they would be likely to be
confused as to their source. In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). In
making this analysis of the second du Pont factor, we look to the identifications of
goods in the subject applications and cited registrations, and we do not consider,
despite Applicant’s arguments, extrinsic evidence of how the marks are actually used.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
Serial Nos. 87142591 & 87142625
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1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
First, Applicant’s “non-alcoholic, vitamin, mineral and/or herbal fortified
beverages for use as a nutritional supplement” overlap with the goods in the ‘790
Registration, which include “nutritional supplements for post-workout muscle repair
by bodybuilders and mixed-martial artists.” Registrant’s goods are not limited as to
the form of the nutritional supplements, and therefore must be presumed to include
all forms of nutritional supplements for the specified purposes, including beverage
supplements. See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006)
(Unrestricted and broad identifications, such as found in Applicant’s goods, are
presumed to encompass all goods of the type described) (citing In re Elbaum, 211
USPQ 639, 640 (TTAB 1981)); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992). The Examining Attorney provided voluminous evidence of supplements of
various kinds being offered in beverage form, as well as in powder form to make into
a beverage.4 By the same token, Applicant’s nutritional supplement beverages are
not limited as to their purpose, and therefore encompass those for post-workout
muscle repair by bodybuilders and mixed-martial artists. Moreover, the record
reflects that the same marks are used on supplements of various kinds and forms,

4 See June 23, 2017 Office Action at 95-147. The evidentiary records in both cases are
essentially the same, except that in Serial No. 87142591, the Examining Attorney duplicated
the evidentiary attachments to the December 2, 2016 Office Action, which therefore consists
of 80 pages rather than 41 pages, as in Serial No. 87142625. Thus, citations to the record
herein apply to both cases.
Serial Nos. 87142591 & 87142625
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underscoring the relatedness of goods such as Applicant’s and the type of goods in the
‘790 Registration.5 Thus, we find the goods overlapping and otherwise related.
We reject Applicant’s attempt to differentiate its beverage supplements based on
allegations about the alleged actual nature and ingredients of the ‘790 Registration’s
supplements supposedly rendering them unlikely to be in liquid form. As noted above,
the unrestricted identification of goods controls the analysis. See Paula Payne Prods.
Co. v. Johnson Publ’g Co., Inc., 473 F.2d 901, 177 USPQ 76, 77-78 (CCPA 1973)
(Board must “give full sweep” to an identification of goods regardless of registrant’s
actual business); see also Octocom, 16 USPQ2d at 1787 (identifications are
controlling). We also reject Applicant’s improper collateral attack on the ‘790
Registration as an abandoned mark. As the Federal Circuit held when dismissing an
applicant’s contentions that the cited registered mark was no longer in use in In re
Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1535 (Fed. Cir. 1997), “the present
ex parte proceeding is not the proper forum for such a challenge.” “[I]t is not open to
an applicant to prove abandonment of [a] registered mark” in an ex parte proceeding;
thus, the “appellant’s argument . . . that [a registrant] no longer uses the registered
mark . . . must be disregarded.” Cosmetically Yours, Inc. v. Clairol Inc., 424 F.2d 1385,
165 USPQ 515, 517 (CCPA 1970).
Second, turning to Applicant’s “non-alcoholic beverages containing fruit extract
and/or herbal juice,” the ‘914 Registration identifies energy drinks. The record shows
many energy drinks that tout herbal juice or fruit extract as ingredients, showing

5 Id. at 94-147.
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overlap between the goods.6 For example, Rockstar Revolt Energy Drink features a
Killer Citrus that includes “2% juice.”7 Hi-ball Organic Energy Drink in Black Cherry
is promoted as containing “Organic cherry juice.”8 Hawaiian Ola Noni Energy Shot is
described as containing “real big island noni juice.”9 Also, some energy drinks are
described as containing the herb ginseng, such as Hi-ball Organic Energy Drink in
Pomegranate Acai10 and Arizona Caution Performance Energy Drink.11 Many other
energy drinks are promoted as fruit drinks. For instance, Monster has a product
named Juice Monster Energy Juice.12 In addition, Crystal Light Pure Energy comes
in strawberry lemonade and wild strawberry flavors in packaging decorated with
depictions of fruit.13 Xyience has a drink called xenergy Cherry Lime.14 Also, the
Examining Attorney introduced many use-based third-party registrations that
include energy drinks under the same mark as beverages with fruit extract and/or
herbal juice such as that identified by Applicant.15 Such registrations serve to suggest
that the goods listed therein are of a kind which may emanate from a single source

6 June 23, 2017 Office Action at 148-218.
7 Id. at 150.
8 Id. at 154.
9 Id. at 159.
10 Id. at 155.
11 Id.
12 Id. at 163.
13 Id. at 170, 173.
14 Id. at 158.
15 December 2, 2016 Office Action at 18-20; June 23, 2017 Office Action at 10-12, 19-22, 29-
30, 31-33, 34-36, 37-38, 39-41, 48-50, 56-58, 59-61, 62-64, 73-75, 76-78, 79-81, 82-84, 85-87,
96-98, 99-101.
Serial Nos. 87142591 & 87142625
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under a single mark. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993); and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988). Overall,
the evidence convincingly demonstrates that Applicant’s goods overlap with the
energy drinks in the cited registration and are otherwise related.
We therefore find the goods in the applications and cited registrations overlapping
and related, and the second du Pont factor therefore strongly weighs in favor of a
finding of likely confusion.
B. Trade Channels and Classes of Consumers
Because the goods in each class of the subject applications are legally identical in
part to goods in the cited registrations, we must therefore presume that the channels
of trade are also identical. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in
determining likelihood of confusion). Applicant’s argument that the trade channels
and consumers differ because the actual goods differ again erroneously relies on
alleged marketplace realities not reflected in the identifications of goods. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (affirming Board finding that where the identification is unrestricted, “we must
deem the goods to travel in all appropriate trade channels to all potential purchasers
of such goods”). Thus, this argument is unpersuasive, and we find that the
overlapping goods travel in the same channels of trade to the same classes of
consumers. The third du Pont factor strongly weighs in favor of a finding of likely
confusion.
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C. Strength of the Cited Marks
Because the strength of the cited marks will inform our comparison of the marks,
we next address Applicant’s claim that the cited marks deserve a narrow scope of
protection because the word “recover” is descriptive in the context of the goods at
issue. The Federal Circuit has held that evidence of extensive registration and use of
a term by others for similar goods can be “powerful” evidence of the term’s weakness.
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. 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). If the evidence
establishes that the consuming public is exposed to widespread third-party use of
similar marks for similar goods, it “is relevant to show that a mark is relatively weak
and entitled to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693
(Fed. Cir. 2005).
A definition introduced by Applicant reflects that “recover” can mean “return to a
normal state of health, mind, or strength.”16 The record also includes, from the file
history Applicant introduced of a now-abandoned application for the mark RECOVER
TIME,17 evidence of third-party descriptive use of the terms “recover” and “recovery”

16 June 2, 2017 Response to Office Action at 229 (oxforddictionaries.com).
17 Serial No. 86708397, previously cited against the subject applications, but withdrawn after
the application abandoned.
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in the context of supplements, as well as evidence of third-party use of these terms in
marks for the same types of goods as are at issue here.18 For example:
• The bodybuilding.com website includes a category of products for “Post
Workout Recovery,” promoting one supplement as “Perfect Anytime for
Energy, Endurance, Recovery….”19

• The PacificHealth website promotes “Endurox R4: All Natural Muscle
Recovery Drink,” noting that “With Endurox R4 you recover faster, recover
better and come back stronger.”20

• The Hammer Nutrition website promotes Recoverite with the slogan “Recover
right today, Hammer tomorrow!” and later notes that the product ensures
users reach “complete recovery after each training session and race.”21

• The website for 32Gi promotes its Recover Sports Drink, noting that it “is a
unique vegetable protein recovery formula” and will “assist with the recovery
process.”22

• A webpage promoting USN Pro Recover Full Body Recovery Drink notes that
it will “Accelerate the Body’s Recovery Process After Prolonged Physical
Activity” and that it “many also be valuable in enhancing recovery from shorter
duration, high-intensity activities.”23

• The Gatorade website promotes “Gatorade Recover” as a “Post-Game Recovery
Beverage” and notes how many “Recover Shakes and Post-Game Recovery
Beverages” MLS players consumed during the 2012 season.24

18 Id. at 232-247. We note that this evidence generally dates from 2015, during prosecution
of Application Serial No. 86708397, and therefore has less probative value than would
current evidence of third-party use.
19 Id. at 232.
20 Id. at 234-35 (pacifichealthlabs.com).
21 Id. at 236-37 (hammernutrition.com).
22 Id. at 240-41 (32gi.com).
23 Id. at 242-44 (usn.co).
24 Id. at 245-46 (Gatorade.com).
Serial Nos. 87142591 & 87142625
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We bear in mind the presumptions afforded the cited registrations, both of which
are on the Principal Register without claims of acquired distinctiveness. See, e.g.,
Wincharger Corp. v. Georator Corp., 157 USPQ 212 (TTAB 1968) (distinctiveness of
registered marks presumed). We agree, however, that the record in this case includes
evidence that “recover” carries at least a highly suggestive meaning in reference to
the goods, and shows that as of a few years ago, several third parties promoted similar
goods with marks containing “recover” and “recovery.” While Applicant argues that
“recover” is descriptive, to the extent that this constitutes a collateral attack on the
cited registrations, as noted above, we cannot credit such contentions in this ex parte
proceeding.25 Considering the record in its entirety, however, we find some degree of
conceptual and commercial weakness of “recover” in the context of the relevant goods.
D. Similarity of the Marks
We turn to comparing the applied-for and cited marks “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay, 73 USPQ2d
at 1691 (quoting du Pont, 177 USPQ at 567). The test assesses not whether the marks
can be distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom

25 Applicant has argued that with a disclaimer of “recover,” its marks should be allowed to
register over the cited marks. However, “such action [disclaimer] cannot affect the scope of
protection to which another’s mark is entitled.” In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
Serial Nos. 87142591 & 87142625
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Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). Where, as here, marks
would appear on in part legally identical goods, the degree of similarity necessary to
support a conclusion of likely confusion declines. Century 21 Real Estate v. Century
Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.1992); see also Viterra,
101 USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260
(Fed. Cir. 2010).
First, comparing and to the cited marks RECOVER
and RE-COVER, the marks share a strong similarity in sight and sound, as the literal
elements of all four marks are nearly identical. While Applicant’s marks feature a
backwards E, the word still would be perceived by consumers as “recover.” See, e.g.,
In Home Federal Savings and Loan Ass’n, 213 USPQ 68, 69 (TTAB 1982) (TRAN$
FUND deemed similar to TRANSFUND). Applicant concedes this point, explicitly
stating in its brief that the literal element of its mark is “RECOVER.”26 Both the cited
marks consist of this same word, albeit hyphenated in the ‘914 Registration. The
marks are phonetically identical.
As to appearance, the cited standard character marks also could be presented in
any font style or size, including in the same lettering used in Applicant’s marks. See
Viterra, 101 USPQ2d at 1909; see also 37 C.F.R. § 2.52(a). While Applicant’s marks
contain design elements, we do not find them significant for purposes of
differentiating Applicant’s marks from the cited marks. Although we bear in mind

26 4 TTABVUE 7 (Applicant’s Brief).
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that no per se rule on this point exists, In re Electrolyte Labs., Inc., 929 F.2d 645, 16
USPQ2d 1239, 1240 (Fed. Cir. 1990), in most cases, the words in a mark dominate
over designs because they are the portion of the mark that will be used to call for the
goods. See CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)
(“[I]n a composite mark comprising a design and words, the verbal portion of the mark
is the one most likely to indicate the origin of the goods to which it is affixed.”). Here,
in addition to the relative prominence of the wording in Applicant’s marks, the
designs are not so unusual that consumers will find them particularly striking. The
drop design in Applicant’s first mark is suggestive of the identified beverage goods,27
and in the other mark, the bar that underlines the wording merely serves to
emphasize the wording. Overall, we find that Applicant’s marks and both cited marks
look and sound very similar. See Nat’l Data Corp., 224 USPQ at 751 (“[I]n articulating
reasons for reaching a conclusion on the issue of confusion, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties”); see also Stone Lion Capital Partners 110 USPQ2d at 1161.
The meanings and commercial impressions of the marks also are fundamentally
the same. The dominant element of Applicant’s marks is essentially the same word
that forms the entirety of each of the cited marks. Thus, “recover” appears in, and
has the same meaning in the context of all four marks’ overlapping goods. This

27 Applicant acknowledged this suggestiveness in its brief, noting that “the graphic element
represent[s] liquid, suggestive of the rejuvenating qualities of the beverage.” 4 TTABVUE 12.
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common element creates the same impression. As noted above, the design elements
in Applicant’s marks add little to, and do not change, their overall commercial
impressions. While Applicant argues without evidentiary support that the backwards
E in its marks “indicates that something is wrong,”28 the consumers who notice the
backwards letter still would perceive the word “recover” and mainly derive the
connotation and commercial impression from the meaning of “recover.” Applicant also
contends without evidentiary support that the backwards E suggests a schwa or
unstressed vowel, but the relevant symbol therefor, , resembles a backwards
lowercase e, rather than an uppercase E such as appears in Applicant’s marks. Thus,
we find Applicant’s arguments in this regard unpersuasive.
Given their resemblance in sound, appearance, connotation and commercial
impression, Applicant’s marks and the cited marks are very similar. Even taking into
account some degree of conceptual and commercial weakness of the term “recover,”
the overall strong similarities in the marks result in this factor supporting a finding
of likelihood of confusion regardless. While the cited marks consist of a term we have
found somewhat weak, they still are entitled to appropriate protection against the
registration of confusingly similar marks. King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974); In re Max Capital Group Ltd.,
93 USPQ2d 1243, 1246 (TTAB 2010) (“[E]ven suggestive or weak marks are entitled
to protection from the use of a very similar mark for legally identical services”); see
also In re Clorox Co., 578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (ERASE for a

28 4 TTABVUE 12 (Applicant’s Brief) (emphasis in original).
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laundry soil and stain remover held confusingly similar to STAIN ERASER,
registered on the Supplemental Register, for a stain remover). As discussed above,
the ways in which Applicant’s marks differ from the cited marks are relatively
insignificant. Thus, here, the appropriate protection of the cited marks forecloses
Applicant’s marks from registering because they are so close to the cited marks.
III. Conclusion
The overall similarity of these marks for overlapping and related goods that move
in the same channels of trade to the same classes of customers renders confusion
likely, despite some degree of weakness of the cited marks.
Decision: The refusals to register Applicant’s marks are affirmed.