Spectra Marketing Group, Inc.

Trademark Trial and Appeal Board

Jun 8, 2018

No. 87112739 (T.T.A.B. Jun. 8, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 8, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Spectra Marketing Group, Inc.
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Serial No. 87112739
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Molly B. Markley of Young Basile Hanlon MacFarlane, PC,
for Spectra Marketing Group, Inc.
Barbara A. Gaynor, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Bergsman, Lykos, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Spectra Marketing Group, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark ULTRA/03 in standard characters for “veterinary supplements,
namely, nutritional supplements for horses,” in International Class 5.1 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 it so

1 Application Serial No. 87112739 was filed on July 22, 2016 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), on the basis of claimed first use of the mark and first
use of the mark in commerce at least as early as June 7, 2016.
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resembles the stylized mark 03, shown below, in Registration No. 3188470 on the
Principal Register for “skin and coat supplements for animals,” in International Class
5,2 as to be likely, when used in connection with the goods identified in the
application, to cause confusion, to cause mistake, or to deceive.

When the Examining Attorney made the refusal final, Applicant appealed.
Applicant and the Examining Attorney have filed briefs. We affirm the refusal to
register.
I. Record on Appeal
The record on appeal consists of:
1. Applicant’s specimen of use;
2. A specimen of use of the mark shown in the cited registration, made of
record by Applicant;3 and
3. Internet webpages showing the sale of skin and coat supplements for
animals and nutritional supplements for horses, made of record by the
Examining Attorney.4

2 The cited registration issued on December 26, 2006 and was renewed on February 27, 2017.
3 May 2, 2017 Response to Office Action at 7.
4 May 23, 2017 Office Action at 2-23.
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II. Evidentiary Issue
Before turning to the merits of the appeal, we address an evidentiary issue.
Applicant attached as Exhibit A to its appeal brief, 4 TTABVUE 8, what it describes
as “a picture of the goods of the cited mark . . . taken from the specimen submitted
with the USPTO.” Id. at 4. The Examining Attorney argues that “Exhibit A to the
applicant’s brief constitutes new evidence submitted by the applicant” comprising “a
copy of a specimen submitted by the registrant with its December 4, 2012 Sections 8
& 15 Combined Declaration of Use and Incontestability.” 6 TTABVUE 9 n.2. The
Examining Attorney “objects to this evidence and requests that the Board disregard
it,” id., further requesting that the Board instead “consider the entire Exhibit A
submitted by the applicant with its May 2, 2017 response” to an Office Action because
“Exhibit A to the applicant’s brief shows a different image than what was previously
submitted as Exhibit A to the applicant’s May 2, 2017 response.” Id.
Rule 2.142(d) of the Trademark Rules of Practice, 37 C.F.R. § 2.142(d), provides
that the “record in an application should be complete prior to the filing of an appeal”
and that “[e]vidence should not be filed with the Board after the filing of a notice of
appeal.” “Generally, materials not previously made of record during prosecution of an
application are untimely if submitted for the first time at briefing and will not
ordinarily be considered by the Board.” In re Pedersen, 109 USPQ2d 1185, 1188
(TTAB 2013); see also In re Fiat Grp. Mktg. & Corporate Commc’ns S.p.A., 109
USPQ2d 1593, 1596 (TTAB 2014). We sustain the Examining Attorney’s objection to
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Exhibit A to Applicant’s appeal brief on the ground that this evidence is untimely,
and have given it no consideration in our decision.5
III. Likelihood of Confusion Analysis
Section 2(d) of the Trademark Act prohibits the registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based upon an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We consider each du Pont factor that is relevant and
for which there is record evidence. See, e.g., 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). Two key factors in every § 2(d)
case are the similarity of the marks and the similarity of the goods or services,
because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976).6 We turn first to the similarity of the marks.

5 We have considered the specimen of use of the cited mark that was made of record by
Applicant during prosecution for whatever probative value it may have.
6 The Examining Attorney discusses both of these factors, 6 TTABVUE 4-11, while Applicant
discusses only the similarity of the marks. 4 TTABVUE 3-7.
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A. The Similarity or Dissimilarity of the Marks
The first du Pont factor considers “‘the similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression.’”
Palm Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citing In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)); accord Krim-Ko Corp. v. Coca-
Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if
the similarity in either form, spelling or sound alone is likely to cause confusion.”)
(citation omitted). “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) (quotation omitted).
Applicant’s mark is ULTRA/O3 in standard characters. The cited mark is O3, with
a superscript numeral “3.” Applicant’s mark contains the letter “O” and the numeral
“3” that comprise the entire alphanumeric portion of the cited mark.7 Applicant
acknowledges that “[a]s a general rule, ‘a subsequent user may not appropriate an
entire mark of another as part of a composite mark where that portion is the

7 The uppercase letter O in the English language looks like the numeral 0 (zero), but
Applicant and the Examining Attorney agree that the “O” character in both marks is the
letter, not the numeral. 4 TTABVUE 6; 6 TTABVUE 7.
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recognizable and dominant feature of the whole and that portion which serves to
create the commercial impression of the entirety.’” 4 TTABVUE 3 (quoting Miller
Brewing Co. v. Premier Beverages, Inc., 210 USPQ 43, 48 (TTAB 1981)). Applicant
contends, however, that the “addition of the terms ‘ULTRA/’ to ‘O3’ give[s] the mark
a very different appearance, sound and connotation” from the cited mark. Id. at 5.
Applicant first argues that the marks have different dominant portions. According
to Applicant, the “cited mark is primarily the letter ‘O’,” which Applicant claims is
“the predominant portion of the cited mark,” id. at 6, while the word ULTRA “is the
dominant portion of Applicant’s mark.” Id. at 7. Applicant then addresses all three
means of comparison of the marks.
Applicant argues that the cited mark “does not visually look like applicant’s
ULTRA/O3, where no significance is given to the letter ‘O’ by itself.” Id. With respect
to sound, Applicant argues that its mark “is pronounced ‘ultra o three,’” while the
cited mark “is pronounced ‘O to the third’ or ‘O three’” and that both pronunciations
are “sufficiently differentiated by the addition of the term ‘ultra’” in Applicant’s mark
Id. As to meaning, Applicant argues that the “connotation of the cited mark being a
power symbol is that it is O to the third power or O x O x O,” which “is a very different
connotation than ULTRA/O3” because the “O3 in Applicant’s mark does not have a
connotation of three letter Os” because it “suggests the connotation of the Omega-3
ingredient in the supplement.” Id. at 6-7.
The Examining Attorney responds that Applicant “essentially has added the word
‘ULTRA’ to the registrant’s mark” and that “[a]dding a term to a registered mark, as
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in the present case, generally does not obviate the similarity between the compared
marks, nor does it overcome a likelihood of confusion under Section 2(d).” 6
TTABVUE 8. She focuses on the similarity of the marks in sound and commercial
impression. With respect to sound, she argues that “portions of the marks are
phonetic equivalents.” Id. at 7. She acknowledges that “[t]here is no correct
pronunciation of a mark because it is impossible to predict how the public will
pronounce a particular mark,” id. at 8 (citing Embarcadero Techs., Inc. v. RStudio,
Inc., 105 USPQ2d 1825, 1835 (TTAB 2012)), but argues that “the wording in question
clearly could be pronounced the same, as acknowledged by the applicant,” id., and
that the similarity “in sound alone may be sufficient to support a finding that the
marks are confusingly similar.” Id. at 7-8 (citing White Swan, 8 USPQ2d at 1535).
With respect to connotation, the Examining Attorney argues that it is appropriate
to give greater weight to the common “O3” and “O3” elements in the marks, and that
the “word ‘ULTRA’ in the applicant’s mark has been considered, but given less
weight, in the likelihood of confusion analysis, because, upon seeing the word
‘ULTRA’ in the applicant’s ULTRA/O3 mark, consumers are likely to believe that it
is a specific line of horse supplements in the registrant’s ‘O3’ line of skin and coat
supplements for animals.” Id. at 11.
We agree with the Examining Attorney that the marks are quite similar in sound
and meaning, and that those similarities outweigh the differences in the marks’
appearance. With respect to sound, Applicant and the Examining Attorney agree that
the O3/O3 element common to the marks could be pronounced identically as “O three,”
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4 TTABVUE 6; 6 TTABVUE 8, and we find that this is the most likely way in which
the common element will be verbalized. See Embarcadero Techs., 105 USPQ2d at
1835 (finding that RSTUDIO and ER/STUDIO were “likely to be verbalized in a
similar manner by at least a significant number of consumers.”). We find that it is
unlikely that a significant number of consumers will verbalize the cited mark as “O
to the third,” the alternative pronunciation suggested by Applicant. 4 TTABVUE 6.
Applicant acknowledges that the “O” character in the cited mark is the letter “O,” not
the numeral zero, id., and it appears unlikely that when the letter “O” appears with
the superscript “3,” the mark “O3” would be verbalized as an algebraic operation. “O3,”
not “O to the third,” is the more likely manner of pronunciation of the cited mark,8
and, in any event, Applicant concedes that the mark could be pronounced as “O3.”
When the common element in the marks is pronounced as “O3,” the marks are
phonetically identical in part. They differ only by the prefix ULTRA in Applicant’s
mark, which, as discussed below, has very little, if any, capacity to identify
Applicant’s goods and to distinguish them from the goods of others. The marks are
similar in sound when considered in their entireties.
We also find that the marks are similar in connotation and commercial impression
because of the common presence of the element “O3/O3.” Applicant claims that “O3”
in its mark “suggests the connotation of the Omega-3 ingredient in the supplement,”

8 We note that the registrant displayed its mark as “O3®” and “O3” in the text of the specimen
of use made of record by Applicant during prosecution, May 2, 2017 Response to Office Action
at 7, and that the website of a seller of veterinary supplements identified the registrant’s
product as “Pet Ag Mirra-Coat O3 Dog Powder.” May 23, 2017 Office Action at 11.
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id. at 7, while “O3” in the cited mark means “O to the third power or O x O x O.” Id.
at 6. Applicant’s argument regarding the meaning of its mark appears to be based
largely upon its specimen of use, on which the words OMEGA 3 NUTRITIONAL
SUPPLEMENT appear below the applied-for mark.9 The presence of these words on
the specimen is irrelevant to our analysis of the similarity of the marks because we
must consider the marks as they are shown in the application and cited registration,
without regard to any extrinsic matter that may be used with the marks at any
particular time. See, e.g., Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d
1464, 1470-71 (TTAB 2016). But even assuming that the “O3” portion of Applicant’s
mark would be understood by consumers to refer to Omega 3, the record shows that
Omega 3 is often identified as an ingredient in veterinary supplements,10 and it is
identified as an ingredient in the registrant’s supplement on the registrant’s
specimen of use made of record by Applicant.11 The fact that Omega 3 is a frequent
ingredient in veterinary supplements suggests that in the context of the relevant
goods, the elements O3 and O3 in the marks will be understood to refer to Omega 3,
which would give the marks as a whole the identical connotation. Irrespective of the

9 The specimen is reproduced at 4 TTABVUE 6.
10 May 23, 2017 Office Action at 11 (displaying VetriScience Canine Omega 3 Gel Caps,
EicosaCaps Omega 3 Capsules, and Wellactin Feline Softgels with Omega 3); 13 (listing
“Omega 3 & 6 fatty acids” as ingredients of an equine supplement; 18, 21 (listing “omega-3
fatty acids” as an ingredient in an equine supplement and a canine skin and coat supplement
sold under the PLATINUM mark); and 23 (displaying Wellactin Canine Omega-3 Softgel
Capsules, Nordic Naturals Omega-3 Pet Soft Gels Dog Supplements).
11 This specimen is reproduced at 4 TTABVUE 5. The reproduction is somewhat blurry, but
the reference to Omega 3 fatty acids is discernable.
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precise meaning of the common element O3/O3 in the marks, however, we find that
the presence of O3/O3 in the marks causes them to connote the same thing.12
As noted above, Applicant argues that ULTRA is the dominant portion of its mark
ULTRA/O3, 4 TTABVUE 7, and that the “addition of the terms ‘ULTRA/’ to “O3’ gives
the mark a very different appearance, sound and connotation.” Id. at 5. We disagree.
While ULTRA is the first element of Applicant’s mark and “it is often the first part if
a mark which is likely to be impressed upon the mind of a purchaser and
remembered,” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
(TTAB 1988), this general principle does not apply to Applicant’s mark because
ULTRA has little, if any, source-identifying significance.
We take judicial notice that the word “ultra” means “beyond what is ordinary,
proper, or moderate: excessively: extremely,”13 and we have repeatedly recognized
“ultra” to be a highly suggestive, self-laudatory term when used in marks for a wide
variety of goods. See, e.g., Eveready Battery Co. v. Green Planet, Inc., 91 USPQ2d
1511, 1518 (TTAB 2009) (“ULTRA has a laudatory meaning indicating disposable
razors of a very high level of quality”); Roux Labs. v. La Cade Prods. Co., 192 USPQ

12 We find it unlikely that consumers will understand the cited mark to mean the algebraic
operation “O to the third power or O x O x O,” as Applicant argues, 4 TTABVUE 6, because
of the possible meaning of “O3” discussed above, and because the product of that hypothetical
algebraic operation is zero, a notion that makes little sense in the branding of skin and coat
supplements for animals, which by definition add something to the animal diet.
13 MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, accessed June 1, 2018). The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983), including online dictionaries that exist in printed form or regular fixed editions. In re
Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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458, 462 (TTAB 1976) (“for applicant’s product [hair dressing and scalp conditioner]
the word ‘ULTRA’ is merely a highly suggestive generalized indication of a
worthwhile product which is promoted on the basis that its use will produce desirable
results”); West-Point Pepperell, Inc. v. Borlan Indus. Inc., 191 USPQ 53, 56 (TTAB
1976) (“‘ULTRA’ colloquially means ‘superior to’ or ‘transcending’ and has been
adopted by many different manufacturers as a part of marks used for textile fabrics
to convey this self-laudatory notion.”); In re Panavision, Inc., 183 USPQ 557, 558
(TTAB 1974) (ULTRA found to be “a self-laudatory term as applied to the goods here
involved [photographic equipment]”). When ULTRA appears in Applicant’s mark
ULTRA/O3, it suggests “O3” horse supplements of particularly high quality or
potency. We agree with the Examining Attorney that it is appropriate to give the
word ULTRA in Applicant’s mark “less weight, in the likelihood of confusion analysis”
and that “upon seeing the word ‘ULTRA’ in the applicant’s ULTRA/O3 mark,
consumers are likely to believe that it is a specific line of horse supplements in the
registrant’s ‘O3’ line of skin and coat supplements for animals.” 6 TTABVUE 11.
The marks are quite similar in sound and appearance, and those similarities are
more significant than the differences between the marks in appearance arising from
the presence in Applicant mark of the self-laudatory prefix “ULTRA.” This du Pont
factor supports a finding of a likelihood of confusion.
B. The Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Customers
The second du Pont factor involves the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration . . . .” Stone Lion
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Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014). Our analysis under this factor is based upon the identifications of
goods in the application and in the subject registration rather than any actual use of
the subject marks. Id. at 1161-63; Octocom Sys., Inc. v. Hous. Computs. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “[L]ikelihood of confusion can
be found ‘if the respective goods are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.’” Coach Servs., 101 USPQ2d
at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
The Examining Attorney argues that “unrestricted and broad identifications are
presumed to encompass all goods of the type described,” 6 TTABVUE 5 (citing
Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015)),
and that the goods here are legally identical because “the registration uses broad
wording to describe ‘Skin and coat supplements for animals,’ which presumably
encompasses all goods of the type described, including applicant’s more specific
‘Veterinary supplements, namely, nutritional supplements for horses.’” Id.
Specifically, she argues that “the registrant’s skin and coat supplements for animals
must be presumed to include applicant’s supplements specifically for horses,” and
that Applicant’s “nutritional supplements must be presumed to include nutritional
supplements used specifically for the skin or coat.” Id.
The goods identified in the cited registration as “skin and coat supplements for
animals” clearly encompass skin and coat supplements specifically for horses, a type
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of animal. By the same token, the goods identified in the application as “nutritional
supplements for horses” are sufficiently broad and unrestricted so as to encompass
supplements directed specifically to the treatment of the skin and coat of horses. On
the face of the identifications, the goods appear to be legally identical, but we need
not conclude that they are to determine that they are similar for purposes of the
second du Pont factor, and that they travel through similar channels of trade to
similar classes of customers for purposes of the third du Pont factor, which concerns
the “‘similarity or dissimilarity of established, likely-to-continue trade channels.’”
Stone Lion, 110 USPQ2d at 1161 (quoting du Pont, 177 USPQ at 567).
The Examining Attorney made of record pages from Internet websites showing
that skin and coat supplements for animals and nutritional supplements for horses
may emanate from the same source under the same mark,14 and that both sets of
goods travel through the same online channels of trade and are purchased by the
same classes of customers, pet and animal owners.15 Such evidence is probative of the
relatedness of the goods, and the similarity of the channels of trade and classes of
customers. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB
2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB
2009). Applicant does not address these du Pont factors, much less controvert the
Examining Attorney’s arguments or evidence, and we find that the similarity of the

14 May 23, 2017 Office Action at 2-6, 13-16, and 17-21.
15 Id. at 7-12, 22-23.
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goods, and their overlapping channels of trade and classes of customers, support a
finding of a likelihood of confusion.
C. Conclusion
The marks are quite similar, and they are used on similar goods that travel
through overlapping channels of trade to the same classes of customers. There is no
evidence in the record on any other du Pont factor. We find, on the basis of the record
as a whole, that use of Applicant’s mark ULTRA/O3 in connection with the goods
identified in the application is likely to cause confusion as to the source or sponsorship
of the goods.
Decision: The refusal to register is affirmed.