Rhino 7

Trademark Trial and Appeal Board

Dec 15, 2016

No. 86579931 (T.T.A.B. Dec. 15, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: December 15, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Rhino 7
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Serial No. 86579931
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Dr. Ken Issa, Owner/Manager of Rhino 7, pro se.

Chris Reams, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
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Before Cataldo, Bergsman and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Rhino 7 (“Applicant”) seeks registration on the Principal Register of the mark
RHINO 7 (in standard characters) for “dietary and nutritional supplements,” in
International Class 5.1 Applicant disclaimed the exclusive right to use the numeral
“7.”2

1 Application Serial No. 86579931 was filed on March 28, 2015, based upon Applicant’s claim
of first use anywhere on February 2, 2010 and first use in commerce on August 25, 2010.
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
2 The record shows that the numeral “7” is used by Applicant and others to indicate that the
dietary and nutritional supplements are effective for 7 days. See the July 3, 2015 and
December 15, 2015 Office Actions.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles the marks RHINO (standard character form)3 and
RHINO and design, shown below,4 owned by the same entity, both for “dietary and
nutritional supplements,” in Class 5, as to be likely to cause confusion.

After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. 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
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.

3 Registration No. 3873284, registered November 9, 2010; Sections 8 and 15 affidavits
accepted and acknowledged.
4 Registration No. 3889569, registered December 14, 2010; Sections 8 and 15 affidavits
accepted and acknowledged.
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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 and/or services. See In re Chatam Int’l Inc., 380 F.2d
1340, 71 USPQ2d 1944, 1945 (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).
Because the design element in the cited mark RHINO and design arguably
contains an additional point of difference with Applicant’s mark, we confine our
analysis to the issue of likelihood of confusion between Applicant’s mark and the cited
registration for the mark RHINO in standard character form. That is, if confusion is
likely between those marks (RHINO 7 and RHINO both in standard characters),
there is no need for us to consider the likelihood of confusion with the cited mark for
RHINO with design elements; the standard character marks would be a sufficient
basis for us to affirm the refusal of registration. Conversely, if there is no likelihood
of confusion between Applicant’s mark and the cited mark in standard character
form, then there would be no likelihood of confusion with the mark RHINO and
design. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).

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A. The similarity or dissimilarity and nature of the goods.
The goods are identical.5
B. Established, likely-to-continue channels of trade.
Because the goods described in the application and the cited registration are
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.
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).
C. 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.
In comparing the marks, we are mindful that where, as here, the goods are identical,
the degree of similarity necessary to find likelihood of confusion need not be as great
as where there is a recognizable disparity between the goods. Coach Servs., Inc. v.

5 “Applicant must concede the similarity of the goods or services as recited in the Applicant’s
applied-for trademark as well as the registered trademark.” Applicant’s Brief, p. 11 (4
TTABVUE 12).
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Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012);
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108
(TTAB 2007); Schering-Plough HealthCare Products Inc. v. Ing-Jing Huang, 84
USPQ2d 1323, 1325 (TTAB 2007).
“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, 101 USPQ2d at
1721; see also San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc.,
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975).
Applicant’s mark is RHINO 7 and the mark in the cited registration is RHINO.
The word “Rhino” in Applicant’s mark RHINO 7 is the dominant part of Applicant’s
mark because the numeral “7” is descriptive of a quality of Applicant’s dietary and
nutritional supplements (i.e., it is effective for 7 days). It is well-settled that
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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.
The significance of the word “Rhino” as the dominant element of Applicant’s mark
is reinforced by its location as the first part of the mark. See Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005) (“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 America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will
first notice the identical lead word); Presto Products Inc. v. Nice-Pak Products, Inc., 9
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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 marks are similar because they share the word “Rhino.” Based on the record
before us, the word “Rhino” is an inherently strong mark when used in connection
with dietary and nutritional supplements. Thus, consumers are likely to believe that
Applicant’s RHINO 7 dietary and nutritional supplements are a stronger, long lasting
line of Registrant’s RHINO dietary and nutritional supplements. Under these
circumstances, the fact that Applicant’s mark encompasses the entire registered
mark increases the similarity between the two marks. See, e.g., Coca-Cola Bottling
Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556,
188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda,
quinine water and ginger ale is likely to cause confusion with BENGAL for gin); In re
Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark
VANTAGE TITAN for medical magnetic resonance imaging diagnostic apparatus
confusingly similar to TITAN for medical ultrasound diagnostic apparatus); In re El
Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO
COMBOS for food items confusingly similar to MACHO for restaurant entrees).
In view of the foregoing, we find that the marks are similar in terms of appearance,
sound, connotation and commercial impression.
D. The conditions under which and buyers to whom sales are made, i.e., ‘impulse’
vs. sophisticated purchasing.

Applicant argues that “consumers of [dietary and nutritional supplements] are
sophisticated insofar as they are wholesalers, and applicant meets them in national
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wide convention, with an adv. budget is 50,000 annual and go to ASD convention,
Nacs convention, TA convention and others [sic].”6
Applicant’s argument is based on the premise that the relevant consumers are
limited to wholesalers. However, we must consider the goods as they are described in
the application and the cited registration. Octocom Sys, Inc. v. Houston Computers
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an applicant's mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicant's goods, the
particular channels of trade or the class of purchasers to which the sales of goods are
directed”). Because there are no restrictions or limitations as to channels of trade in
the description of goods, we must presume that both Applicant’s goods and
Registrant’s goods move in all channels of trade, and that they are available to all
classes of purchasers for those goods. See Paula Payne Products Co. v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973); Kalart Co. v. Camera-
Mart, Inc., 258 F.2d 956, 119 USPQ 139, 140 (CCPA 1958); In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992). Thus, the relevant consumers include not only
wholesalers, but ultimate consumers, who exercise various degrees of purchasing
care.
Also, Applicant failed to introduce any evidence regarding the factors that
consumers use in selecting dietary and nutritional supplements. Nevertheless, by

6 Applicant’s Brief, p. 11 (4 TTABVUE 12).
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virtue of the inherent nature of dietary and nutritional supplements, we acknowledge
that the relevant consumers, even ordinary consumers who purchase such products,
exercise a higher than normal degree of purchasing care. Accordingly, we find that
this factor weighs against finding a likelihood of confusion.
E. No reported instances of confusion.
Applicant argues that there have been no reported instances of actual confusion.7
The Federal Circuit has addressed the question of the weight to be given to an
assertion of no actual confusion by an applicant in an ex parte proceeding:
With regard to the seventh DuPont factor, we agree with
the Board that Majestic’s uncorroborated statements of no
known instances of actual confusion are of little
evidentiary value. See In re Bissett-Berman Corp., 476 F.2d
640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that
self-serving testimony of appellant’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). A showing of actual
confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion. The opposite
is not true, however. The lack of evidence of actual
confusion carries little weight, [citation omitted], especially
in an ex parte context.
Majestic Distilling, 65 USPQ2d at 1205 (quoted in In re Integrated Embedded, 120
USPQ2d 1504, 1515 (TTAB 2016)).
Accordingly, while examples of actual confusion may point toward a finding of a
likelihood of confusion, an absence of such evidence is not compelling in support of a

7 Applicant’s Brief, p. 12 (4 TTABVUE 13).
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finding of no likelihood of confusion. Thus, we cannot conclude from the lack of
instances of actual confusion that confusion is not likely to occur.
In any event, this record is devoid of any probative evidence relating to the extent
of use of Applicant’s and Registrant’s marks and, thus, whether there have been
meaningful opportunities for instances of 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).
F. Balancing the factors.
Although the relevant consumers will exercise a higher than normal degree of
purchaser care, this factor does not outweigh the similarity of the marks, the identity
of the goods, and the presumption that the goods move in the same channels of trade
and are sold to the same classes of consumers. Accordingly, we find that Applicant’s
mark RHINO 7 for “dietary and nutritional supplements” is likely to cause confusion
with the registered mark RHINO for “dietary and nutritional supplements.”
Decision: The refusal to register Applicant’s mark RHINO 7 is affirmed.