No. 77827420 (T.T.A.B. Mar. 27, 2012)

Sonatt Nutritionals

Trademark Trial and Appeal BoardMar 27, 2012

No. 77827420 (T.T.A.B. Mar. 27, 2012)

Mailed: March 27, 2012 Bucher UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Sonatt Nutritionals ________ Serial No. 77827420 _______ Wyatt L. Evans, President, for Sonatt Nutritionals. Laura Gorman Kovalsky, Trademark Examining Attorney, Law Office 110 (Chris A.F. Pedersen, Managing Attorney). _______ Before Bucher, Holtzman and Wellington, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: Sonatt Nutritionals seeks registration on the Principal Register of the following mark: THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77827420 - 2 - for “nutraceuticals for use as a dietary supplement” in International Class 5.1 The Trademark Examining Attorney issued a final refusal to register this designation based upon Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). The Trademark Examining Attorney has taken the position that applicant’s mark, when used in connection with the identified goods, so resembles the following mark: registered for “beverages, namely, fruit-flavored beverages and bottled water” in International Class 32.2 as to be likely to cause confusion, to cause mistake or to deceive. 1 Application Serial No. 77827420 was filed on September 16, 2009, based upon applicant’s allegation of a bona fide intention to use the mark in commerce. The mark consists of the stylized word SONU with the letter “O” therein surrounded on its perimeter by a white ring, and then three layers of dots, the first layer being yellow, the second layer being a darker yellow, and the third layer being orange. The letter “O” also has a circular boomerang-shaped white line intersecting the entire “O.” The inside of the “O” is white. The colors black, white, orange, and yellow are claimed as a feature of the mark. Serial No. 77827420 - 3 - After the Trademark Examining Attorney made the refusal final, applicant appealed to this Board. We affirm the refusal to register. Applicant has repeatedly argued that registrant’s first extension request following the notice of allowance was untimely, that registrant’s amendment to its mark was untimely, and that registrant’s amendments to its mark comprised impermissible material alterations. Each time applicant has pursued this line of reasoning, the Trademark Examining Attorney has made it clear that arguments comprising a collateral attack on a cited registration are not appropriate during ex parte prosecution. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997); and In re Peebles Inc., 23 USPQ2d 1795, 1797 n.5 (TTAB 1992). As to the respective marks, we conclude that the marks, having identical literal elements, create substantially the same commercial impression. The term “SONU” appears to be arbitrary as applied to these goods, and hence, is an inherently strong mark. Furthermore, both marks have a 2 Registration No. 3758082 issued on March 9, 2010. The mark consists of the word SONU in a stylized format. The color red appears in the letters “S,” “O,”, “N” and “U” of the word SONU, and the color black appears in the horizontal line underlining the letter “U” of the word SONU. The colors red and black are claimed as a feature of the mark. Serial No. 77827420 - 4 - diacritical mark accentuating the letter “U,” which adds additional points of similarity to the respective marks as to sound and appearance (whether the macron is above or below the letter “U”). In its brief, applicant makes no arguments about the dissimilarity of the marks. As to the relationship of the goods, the Trademark Examining Attorney has placed into the record copies of third-party registrations of marks used in connection with the same or similar goods as those of both applicant and registrant in this case. These printouts have probative value to the extent that they serve to suggest that the goods listed therein are of a kind that may emanate from a single source, and include registrations for “dietary supplement beverages”, “nutraceutical beverages” and/or single marks used for both applicant’s and registrant’s types of goods. In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The Trademark Examining Attorney has also made of record copies of websites showing that both dietary supplements and nutraceuticals are commonly consumed in the form of a beverage. Again, we note that applicant made no argument in its brief concerning the relatedness of the goods in Serial No. 77827420 - 5 - question. Hence, we find that these goods are closely related. Applicant has not tried to rebut the prima facie case in support of likelihood of confusion put forward by the Trademark Examining Attorney, nor has applicant argued against any of her conclusions on the relevant du Pont factors. Decision: The refusal to register under Section 2(d) of the Lanham Act is hereby affirmed.