Regina S. Druz

Trademark Trial and Appeal Board

Jan 22, 2018

No. 86614598 (T.T.A.B. Jan. 22, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: January 22, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Druz
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Serial No. 86614598

Harold L. Novick and Angela Y. Dai, of Novick, Kim & Lee, PLLC
for Regina Shmulker Druz.
Paul Fahrenkopf, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Kuczma, Gorowitz and Coggins,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Regina Shmulker Druz (“Applicant”) seeks registration on the Principal Register
of the mark FIT IN YOUR GENES (in standard characters) for:
Medical services, namely, providing a program for
achieving weight loss; providing a weight loss program
involving detox, genetically guided evaluation for optimal
macronutrients and micronutrients balance, exercise type
and duration, and supplement optimization; providing
integrative, holistic care to patients involving genetics,
environmental, nutritional, and exercise evaluation, and
nutritional supplements for prevention and treatment of
chronic conditions; providing medical advice to patients
Serial No. 86614598

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involving genetics, environmental, nutritional, and
exercise evaluation, and nutritional supplements for
prevention and treatment of chronic conditions, in
International Class 44.1
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 the ground that it
so resembles the registered mark “fitgenes” with a design consisting of two
interlocking chevrons, a depiction of which is set forth below:
2
for the services set forth below as to be likely to cause confusion, mistake or deception:
Training and education services, namely, providing live
and on-line courses, classes, seminars and workshops in
the fields of genetic profiling, health, diet, weight loss,
weight control, nutrition, physical activity, fitness, medical
conditions, general well-being and wellness, and
dissemination of educational materials in connection
therewith in printed or electronic format; education
services, namely, providing non-downloadable webinars in
the fields of genetic profiling, health, diet, weight loss,
weight control, nutrition, physical activity, fitness, medical
conditions, general well-being and wellness; education
services, namely, providing web-based and classroom
training for certification of practitioners and continuing
education for practitioners, and dissemination of
educational materials in connection therewith in printed or
electronic format; arranging and conducting seminars,
lectures, training workshops, educational conferences,
educational exhibitions for training and educational

1 Application Serial No. 86614598 was filed on April 29, 2015, based upon Applicant’s
allegation of first use anywhere and use in commerce on June 14, 2014 under Section 1(a) of
the Trademark Act.
2 Registration No. 4843387, registered November 3, 2015. The registration includes the
following description of the mark: The mark consists of two interlocking chevrons next to the
word “FITGENES.”
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purposes in the fields of genetic profiling, health, diet,
weight loss, weight control, nutrition, physical activity,
fitness, medical conditions, general well-being and
wellness, and dissemination of educational materials in
connection therewith in printed or electronic format;
lifestyle counselling and consultancy, namely, training in
the fields of lifestyle counselling and consulting;
educational examination and assessment services;
occupational health and safety services, namely, education
and training services in the form of courses, classes,
seminars and workshops in the field of occupational health
and safety; physical health education, namely, classes,
seminars and workshops in the field of physical health;
providing personalised exercise and fitness programs
based on a person's DNA profile; provision of information
relating to training and education, namely, information on
training and education opportunities; providing online, not
downloadable, electronic publications in the fields of
genetic profiling, health, diet, weight loss, weight control,
nutrition, physical activity, fitness, medical conditions,
general well-being and wellness; electronic publication of
information on a wide range of topics, including online and
over a global computer network, namely, publication of
articles, brochures, e-books, magazines, newsletters in the
fields of genetic profiling, health, diet, weight loss, weight
control, nutrition, physical activity, fitness, medical
conditions, general well-being and wellness; publication of
educational materials, educational texts, books, journals,
electronic books and journals online, magazines, manuals,
videos, posters, texts other than publicity texts; online
publication of journals or diaries, namely, weblogs in the
fields of genetic profiling, health, diet, weight loss, weight
control, nutrition, physical activity, fitness, medical
conditions, general well-being and wellness in
International Class 41; and
Genetic testing for medical purposes; medical advisory
services relating to genetic profiling, health, diet, weight
loss, weight control, nutrition, physical, fitness, medical
conditions, general well-being and wellness; providing
medical information including online, about genetic
profiling, health, diet, weight loss, weight control,
nutrition, physical, fitness, medical conditions, general
well-being and wellness; providing a website featuring
medical information and medical advice in the fields of
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health, diet, weight loss, nutrition, diet planning and
lifestyle wellness; personalized dietary and weight
management services, namely, providing weight loss
and/or weight maintenance programs; personalized dietary
and weight management services, namely, providing
personalized genomics-based programs to effectively
manage a patient's diet and weight; health risk assessment
surveys, namely, providing a series of health related
questions for response from the user that result in a report
that provides health-related information in the form of
recommended educational resources and treatment
information; medical screening; medical advisory services
in International Class 44.
When the refusal was made final, Applicant appealed. We reverse the refusal to
register.
Likelihood of confusion.
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also, In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed.
Cir. 1997).
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A. Similarity of services, channels of trade and class of customers.
We start our analysis with the second and third du Pont factors, the similarity of
the services, the channels of trade, and the class of customers. When determining the
relationship between the services,
[i]t is well settled that the issue of likelihood of confusion
between applied-for and registered marks must be
determined on the basis of the [services] as they are
identified in the involved application and cited
registration, rather than on what any evidence may show
as to the actual nature of the [services], their channels of
trade and/or classes of purchasers.
In re Total Quality Group Inc., 51 USPQ2d 1474, 1476 (TTAB 1999). See also Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1161-1162 (Fed. Cir. 2014). “In comparing the . . . [services], ‘[t]he issue to be
determined . . . is not whether the [services] . . . are likely to be confused but rather
whether there is a likelihood that purchasers will be misled into the belief that they
emanate from a common source.’” Anheuser-Busch, LLC v. Innvopak Sys. Pty. Ltd.,
115 USPQ2d 1816, 1825 (TTAB 2015) (quoting Helene Curtis Indus. Inc. v. Suave
Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989)).
The services in both the application and cited registration relate to medical care,
in particular weight loss programs, and the use of genetic information in performing
the same. Applicant’s services, identified as “medical services, namely, providing a
program for achieving weight loss; providing a weight loss program involving detox,
genetically guided evaluation for optimal macronutrients and micronutrients
balance, exercise type and duration, and supplement optimization” are in-part
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identical and otherwise closely related to the services in the cited registration
identified as “personalized dietary and weight management services, namely,
providing weight loss and/or weight maintenance programs; personalized dietary and
weight management services, namely, providing personalized genomics-based
programs to effectively manage a patient's diet and weight.” Moreover, Applicant does
not contest the relationship between the services.
It 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 class of purchasers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012). Therefore, because the services are in part legally identical,
they are presumed to travel in the same channels of trade to the same classes of
purchasers. Accordingly, the second and third du Pont factors favor a finding of
likelihood of confusion.
B. Similarity of the marks.
We next consider the first du Pont factor, the similarity or dissimilarity of the
marks in their entireties. In comparing the marks we must consider their appearance,
sound, connotation and commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). “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
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connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted).
Applicant argues the the design element in the cited mark creates “a distinct,
significant commercial impression[s] in the purchaser’s mind such that this element
alone should dictate no likelihood of confusion. We disagree. While “the similarity or
dissimilarity of the marks is determined based on the marks in their entireties …
there is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, provided the ultimate conclusion
rests on a consideration of the marks in their entireties.” In re National Data Corp.,
753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
In this case, the cited mark is a composite mark consisting of a verbal or literal
portion and a design. When evaluating a composite mark containing both words and
designs, the verbal portion of the mark is the one most likely to indicate the origin of
the goods to which it is affixed because it is the portion of the mark that consumers
would use to refer to or request the services. In re Viterra Inc., 101 USPQ2d at 1908,
1911. Although the design in the cited mark is not insubstantial, it is the literal
portion of the mark that dominates.
While the appearance of the marks is somewhat similar since both encompass the
word “FIT” and “GENES,”3 the meanings and commercial impressions are not.

3 In the cited mark, the literal portion of the mark consists entirely of these two words.
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To determine the meanings of the marks, we first look at the word “fit.” There are
numerous definitions of the word which differ based on usage. Among the numerous
definitions are the following for “fit” used as a verb and for “fit” used as an adjective:4
Fit (verb)
1 : to be the right shape or size
• This shirt doesn’t fit any more.

2 : to bring to the right shape or size
• I had the suit fitted.
3 : to find room or time for
• Can you fit this in your suitcase?
• The doctor can fit you in tomorrow.
4 : to go into a particular place
• Will we all fit in your car?
5 : to be suitable for or to
• I dressed to fit the occasion.
6 : Equip
• They fitted the ship with new engines.
Fit (adjective)
1. : proper or acceptable : morally or socially correct.
2. : suitable for a specified purpose.
3. : physically healthy and strong.

4 We take judicial notice of the definition of “fit” from the Merriam-Webster On-line
Dictionary. www.merriam-webster.com/dictionary/fit (last visited January 19, 2018) © 2018
Merriam-Webster, Incorporated.
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format, In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016).

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Next, we look at the word, “gene,” which is defined as “a specific sequence of
nucleotides in DNA or RNA that is located usually on a chromosome and that
is the functional unit of inheritance controlling the transmission and
expression of one or more traits by specifying the structure of a particular
polypeptide and especially a protein or controlling the function of other genetic
material.”5
When we look at the marks in their entireties, the differences in meanings and
commercial impressions are clearly apparent.
In Applicant’s mark, “FIT” is used as a verb, which means “be the right shape or
size” and “GENES” is a play on the word, “jeans,” which is an article of clothing. As a
whole the phrase “FIT IN YOUR GENES” when used in connection with weight loss
programs (Applicant’s services) connotes the goal of the programs.
To the contrary, in the cited mark, “FIT” is used as an adjective and means
“physically healthy and strong.” As a phrase, the term FITGENES connotes genetic
characteristics of physical health and strength. The mark is suggestive of the
registrant’s services of genetic testing and medical advisory services relating to
genetic profiling, including weight management services such as personalized
genomics-based programs to effectively manage a patient's diet and weight profiling.

5 We take judicial notice of the definition of “gene” from the online version of the Merriam-
Webster dictionary. www.merriam-webster.com/dictionary/gene (last visited January 19,
2018).

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The facts in this case are similar to those in Approved Pharm. Corp. v. P. Leiner
Nutritional Prods. Inc., 5 USPQ2d 1219 (TTAB 1987) wherein the Board found that
confusion as to source or sponsorship arising from the contemporaneous use of the
marks HEALTHY LIFE and HEALTH FOR LIFE for goods including vitamins and
dietary food supplements, “while possible, is not likely.”6 Approved Pharm. Corp. at
1221. The Board noted “that while the respective marks are somewhat similar in
appearance, we think HEALTH[Y] LIFE and HEALTH FOR LIFE do not have the
same meaning or connotation and engender different commercial impressions.” Id.
Similarly, in the current case, the marks FIT IN YOUR GENES and FITGENES do
not have the same meaning or connotation and also engender different commercial
impressions.
While not the dominante element in the mark, the design element, consisting of
the interlocking chevron device set forth below

further differentiates the marks in their entireties.
Accordingly, we find that the first du Pont factor weighs against a finding of
likelihood of confusion.

6 The difference between the Approved Pharm. case and this one is that in the Approved
Pharm. case, Petitioner had obtained a letter of consent from Respondent to its registration
of HEALTH FOR LIFE, which the PTO rejected. In this case, there is no indication that
Applicant sought a consent to her use and registration from the Registrant.
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C. Conclusion.
We have considered all of the evidence relating to the du Pont factors, including
those that have not been discussed, and conclude that notwithstanding that the
services are, in part, legally identical, and the channels of trade and purchasers
overlap, the marks are too dissimilar to warrant a determination of likely confusion.
We consider the first du Pont factor dispositive in this case. See Champagne Louis
Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460 (Fed. Cir.
1998) (holding that Board did not err in deciding likelihood of confusion based solely
on dissimilarity of marks regardless of other du Pont factors, that favored a likelihood
of confusion, noting that “we have previously upheld Board determinations that one
DuPont factor may be dispositive in a likelihood of confusion analysis, especially
when that single factor is the dissimilarity of the marks”); Kellogg Co. v. Pack’em
Ent., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991) (upholding Board decision
that “a single duPont factor – the dissimilarity of the marks – was dispositive of the
likelihood of confusion issue,” observing “we know of no reason why, in a particular
case, a single duPont factor may not be dispositive”).
Decision: The refusal to register Applicant’s mark is reversed.