Steve Reynolds

Trademark Trial and Appeal Board

Mar 15, 2010

No. 76680214 (T.T.A.B. Mar. 15, 2010)

Mailed: 3/15/10

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Steve Reynolds
________

Serial No. 76680214
_______

Neil F. Markva for Steve Reynolds.

Elissa Garber Kon, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_______

Before Seeherman, Quinn and Grendel, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Steve Reynolds filed an application to register the
mark shown below

for
prerecorded CDs dealing with
information concerning aspects of
Christian life that pertain to a
competitive, corporate weight loss
contest, and recognition and incentive
awards program having a specified
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 76680214
2
beginning and end time, and that
involves corporate exercise of teams
that provide support for individual
team members who are excessively
overweight participants overcoming
their obesity (in International Class
9); and

educational services, namely conducting
lectures and workshops in the field of
aspects of Christian life that pertain
to a competitive, corporate weight loss
contest, and recognition and incentive
awards program having a specified
beginning and end time, and that
involves corporate exercise of teams
that provide support for individual
team members who are excessively
overweight participants overcoming
their obesity, and distribution of
course material in connection therewith
(in International Class 41).1

The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s mark, when used in
connection with applicant’s goods and services, so
resembles the previously registered mark shown below as to
be likely to cause confusion.

1 Application Serial No. 76680214, filed August 2, 2007, alleging
first use anywhere and first use in commerce in connection with
the goods in Class 9 in February 2007; and first use anywhere and
first use in commerce in connection with the services in Class 41
in January 2007.
Ser. No. 76680214
3

for
prerecorded audio tapes, video tapes
and compact discs all in the fields of
faith-based health, nutrition,
wellness, healthy living, exercise and
physical fitness, biblical teachings
and spiritual inspiration (in
International Class 9);

books, newsletters, magazines, printed
paper signs, posters, compact disc
inserts, decals, postcards,
instructional and teaching materials,
informational flyers all in the fields
of faith-based health, nutrition,
wellness, healthy living, exercise and
physical fitness, biblical teachings
and spiritual inspiration (in
International Class 16);

educational and entertainment services,
namely conducting classes, conferences,
seminars and workshops in the fields of
biblical teachings, spiritual
inspiration, faith-based health,
nutrition, wellness, healthy living,
exercise and physical fitness and the
distribution of course materials in
connection therewith (in International
Class 41); and

evangelistic and ministerial services
(in International Class 45).2

2 Registration No. 2887163, issued September 21, 2004.
Ser. No. 76680214
4
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Applicant states that the marks convey different
commercial impressions, and that “the slang term ‘BOD’
rhymes with ‘GOD’ and symbolizes both before (the physical)
and after (the spiritual) characteristics of the body of a
person respectively involved in his weight loss program and
their relationship with God.” (Brief, p. 9). Applicant
further contends that “the distinctive design presentation
and commercial impression [of his mark] likens God’s
invisible attribute of self-control, that is, self-
government, to man’s invisible attribute of self-control in
caring for his body and indicates a way to completely
integrate God into a person’s life.” (Brief, p. 9). This
is contrasted with registrant’s mark that “depicts a person
in the form of a cross to illustrate taking up a person’s
personal cross through Registrant’s goods related to faith-
based health, nutrition, wellness, healthy living, exercise
and physical fitness, biblical teachings and spiritual
inspiration.” (Brief, p. 12). Although applicant concedes
that “excessively overweight or obese persons might become
involved with Registrant’s goods and services,” applicant
goes on to state that “nothing in the inherent nature and
type of Registrant’s goods and services contemplates
Ser. No. 76680214
5
holding a corporate, weight loss contest for a limited
period of time that voluntarily engages a church, an
organization, or group to organize, operate, and conduct
the contest.” (Brief, p. 13). Applicant argues that his
“competitive, corporate weight loss contest, and
recognition and incentive awards program” is unique and
“completely different from known weight loss programs that
simply discuss obesity as well as nutrition, physical
activity and the connection between health and faith.”
(Brief, p. 14). Applicant also states that he is not aware
of any instances of actual confusion in the marketplace.
In support of his arguments, the record includes three
declarations of Mr. Reynolds, and website information about
applicant’s goods and services.
The examining attorney maintains that the dominant
word portions of the marks create the same commercial
impression, and that the subordinate design portions of the
marks are insufficient to distinguish the marks. As to the
goods and services, the examining attorney points out that
registrant’s are identified broadly enough to encompass the
more specifically identified goods and services in the
involved application. The examining attorney contends
that, despite the addition of significant detail to narrow
applicant’s identifications of goods and services by way of
Ser. No. 76680214
6
five separate amendments, applicant is essentially
providing prerecorded CDs and educational services in the
field of Christian life that pertain to weight loss, the
same type of goods and services set forth in the cited
registration. In support of the refusal the examining
attorney introduced a dictionary definition of “bod,” and
excerpts of third-party websites showing the existence of
various faith-based weight loss programs, and other weight
loss programs that involve competitions, team programs, and
prizes and other incentives to achieve weight goals. Also
of record are third-party registrations to show that the
word “for” and the number “4” are used interchangeably in
marks.
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., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, 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).
Ser. No. 76680214
7
We first turn to consider the du Pont factor regarding
the similarity between the goods and/or services. It is
not necessary that the respective goods and/or services be
competitive, or even that they move in the same channels of
trade to support a holding of likelihood of confusion. It
is sufficient that the respective goods and/or services are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods and/or
services are such that they would or could be encountered
by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originated from the same producer. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991). The question
of likelihood of confusion is determined based on the
identification of goods and services in the application
vis-à-vis the goods and services as set forth in the cited
registration. In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1690 n.4 (Fed. Cir. 1993); and In re Jump
Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). The issue
is not whether consumers would confuse the goods and/or
services themselves, but rather whether they would be
confused as to the source of the goods and/or services.
Applicant’s goods and services, as identified, and
registrant’s goods and educational services, as identified,
Ser. No. 76680214
8
essentially involve faith-based programs to promote an
individual’s well being and health. We recognize that
applicant’s goods and services are focused on weight loss
through a specific type of program with certain features,
while registrant’s goods and educational services are
directed more generally to “faith-based health, nutrition,
wellness, healthy living, exercise and physical fitness.”
However, registrant’s identifications of goods and
educational services, as worded, are broad enough to
encompass a faith-based weight loss program; and, to state
the obvious, weight loss is a common benefit of nutrition,
exercise and physical fitness. In fact, in Mr. Reynolds’
“second declaration” (¶ 5), he “acknowledges that diet and
weight loss are typical components of virtually all health,
nutrition, wellness, healthy living and weight loss
programs.”
Mr. Reynolds’ three declarations detail the specifics
about his faith-based weight loss program, leading him to
become known as “The Anti-Fat Pastor” who has lost over 100
pounds, and who has led his congregation to lose over two
tons of weight. The record also includes information about
applicant’s book that incorporates the ideas promoted in
applicant’s CDs and educational services. The following
remarks are illustrative of applicant’s goods and services:
Ser. No. 76680214
9
My name is Pastor Steve Reynolds author
of BOD4GOD and creator of the Losing to
Live weight loss program. I wanted to
first tell you why I wrote my book
BOD4GOD and why I started the Losing to
Live weight loss program...I decided to
develop a weight loss program to fight
against obesity. This was how and why
Losing to Live was created. I wanted
to help others fight against being
obese and to do it with God’s
words...People of all ages and fitness
levels have participated and seen
improvements in cardiovascular fitness,
strength, and flexibility. You will be
encouraged and empowered by this book
as you seek to improve your health and
live a life of energy and vitality to
God’s glory.

The following remarks about registrant’s goods and
services appear on a third-party website
(www.creativepastors.com): “The Body for God lifestyle
gives us the opportunity to address how our spiritual and
physical health intersects to reflect a true body for God”;
“We all make resolutions every year to eat better, exercise
more, and just generally take better care of our
bodies...In this series, [registrant] reminds us that the
body, God’s greatest creation, matters to Him. He also
addresses how our spiritual and physical health intersect
to reflect a true body by God”; and “Body for God Walking
with Weights. [A] walking program that can help you lose
weight, tone up and increase energy. More importantly, it
will help you incorporate worship into your daily workout.”
Ser. No. 76680214
10
The record also includes examples (third-party
websites) of a number of faith-based weight-loss programs
developed by third parties that incorporate physical
fitness activities. An article about this trend,
“Spiritual Weight Loss: Faith-Based Diets,” states the
following:
Faith-based diets are increasingly
popular with Christians making up the
largest base for the new trend. Many
pastors and church leaders are
recognizing obesity in their
congregation and preaching about weight
loss as it relates to the Bible. So,
don’t be surprised if your local church
group incorporates an aerobics class or
diet seminar as part of weekly
fellowship activities.
(www.aolhealth.com)

Simply put, the restrictions in applicant’s
identifications of goods and services are clearly
insufficient to distinguish them from the similar goods and
services listed in the cited registration. Applicant’s and
registrant’s CDs and educational services involve
essentially the same subject, namely faith-based health,
nutrition and wellness.
The goods and services are offered in the same trade
channels (churches and other faith-based communities) to
the same classes of purchasers, including ordinary ones
Ser. No. 76680214
11
looking for faith-based health, nutrition and wellness
programs.
In sum, the similarities between the goods and
services, as well as the identity in trade channels and
purchasers, are du Pont factors that weigh in favor of a
finding of likelihood of confusion.
We next turn to consider the du Pont factor of the
similarity between the marks. We must compare the marks in
their entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test, under the
first du Pont factor, is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression that confusion
as to the source of the goods and/or services offered under
the respective marks is likely to result. The focus is on
the recollection of the average purchaser, who normally
retains a general rather than a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
Ser. No. 76680214
12
It is well settled that one feature of a mark may be
more significant than another, and it is not improper to
give more weight to this dominant feature in determining
the commercial impression created by the mark. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985) (“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. Indeed, this type of analysis appears to be
unavoidable.”).
Where both words and a design comprise the mark (as in
the marks herein), then the words are normally accorded
greater weight because the words are likely to make an
impression upon purchasers, would be remembered by them,
and would be used by them to request the goods. In re
Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987);
and Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ
461, 462 (TTAB 1985). See also Giant Food, Inc. v.
Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390
(Fed. Cir. 1983). Thus, although we have taken into
account the design features of the marks, we find that the
dominant portion is the literal portion of the respective
marks.
Ser. No. 76680214
13
The literal portions BOD4GOD and BODY FOR GOD are
strikingly similar. The examining attorney submitted a
dictionary definition of the term “bod” showing that it is
an abbreviation of “body.” (www.acronymfinder.com).
Further, the number “4” when spoken is the phonetic
equivalent of the word “for.” Moreover, marks often
incorporate the numeral “4” as a substitute for the word
“for,” as shown by several third-party registrations (e.g.,
SONGS 4 WORSHIP, FIT4CHRIST, and SLIM 4 LIFE).
Nevertheless, applicant contends that the number “4” in his
mark is a “double entendre” meaning “4 keys to a better
diet.” However, we agree with the examining attorney’s
assessment on this point: “consumers who encounter the
number 4 in this mark are likely to interpret it as
standing in for the word FOR, rather than attributing any
extrinsic meaning based on evidence beyond the actual mark
and the identification of goods/services.” (Office action,
5/18/09). Cf. In re The Place Inc., 76 USPQ2d 1467, 1470
(TTAB 2005) (“A mark thus is deemed to be a double entendre
only if both meanings are readily apparent from the mark
itself.” (emphasis in original)).
We accordingly find that the literal portions of the
marks are virtually identical in sound, and are very
similar in appearance. Moreover, BOD4GOD and BODY FOR GOD
Ser. No. 76680214
14
convey the same meaning. Neither the stylization present
in applicant’s mark nor the design feature in registrant’s
mark serves to sufficiently distinguish the marks. Given
the near identity between BOD4GOD and BODY FOR GOD, the
marks, when considered in their entireties, engender very
similar overall commercial impressions.
On balance, the similarities between the marks clearly
outweigh the differences, and this du Pont factor weighs in
favor of a finding of likelihood of confusion.
In arguing against the likelihood of confusion
refusal, applicant points to how the applied-for mark is
presented in the marketplace, namely with the words “FOUR
KEYS TO A BETTER BODY” appearing immediately below the mark
sought to be registered. This use is irrelevant to our
likelihood of confusion analysis inasmuch as it must be
based on a comparison of the registered mark with
applicant’s mark as shown in the application drawing. To
state the obvious, the words “FOUR KEYS TO A BETTER BODY”
are not part of the mark sought to be registered and, if
applicant were to obtain a registration, his use of the
mark would not require the inclusion of this phrase.
Applicant’s assertion of no actual confusion between
the marks is entitled to little weight. In re Majestic
Distilling Co., 65 USPQ2d at 1205 (“uncorroborated
Ser. No. 76680214
15
statements of no known instances of actual confusion are of
little evidentiary value”). See In re Bisset-Berman Corp.,
476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that
self-serving testimony of applicant’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, J.C. Hall Co. v.
Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA
1965), especially in an ex parte context In any event, the
record is devoid of 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., 222 F.3d
943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000); and Gillette
Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
1992). Accordingly, the du Pont factor of the length of
time during and conditions under which there has been
contemporaneous use without evidence of actual confusion is
considered neutral.
Ser. No. 76680214
16
We conclude that consumers familiar with registrant’s
prerecorded CDs, books and educational services in the
fields of faith-based health, nutrition and wellness
offered under the mark BODY FOR GOD and design would be
likely to mistakenly believe, upon encountering applicant’s
mark BOD4GOD and design for prerecorded CDs and educational
services featuring Christian-based weight loss programs,
that the goods and services originated with or are somehow
associated with or sponsored by the same entity.
Decision: The refusal to register is affirmed.