Trilliant Food and Nutrition, LLC

Trademark Trial and Appeal Board

Sep 8, 2017

No. 87310613 (T.T.A.B. Sep. 8, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: September 8, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Trilliant Food and Nutrition, LLC
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Serial No. 87310613
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Kyle T. Peterson of Patterson Thuente Pedersen PA,
for Trilliant Food and Nutrition, LLC.
Khanh M. Le, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
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Before Taylor, Mermelstein and Greenbaum,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Trilliant Food and Nutrition, LLC (“Applicant”) seeks registration on the Principal
Register of the mark IGNITOR (in standard characters) for “powdered nutritional
supplement drink mixes for use in single-serve brewing machines” in International
Class 5.1

1 Application Serial No. 87310613 was filed on January 23, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). The application includes a claim of ownership of
Registration No. 5106697 for the standard character mark IGNITOR for “coffee” in
International Class 30.
Serial No. 87310613
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The Trademark Examining Attorney (“Examining Attorney”) has refused
registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used on or in connection with
the identified goods, so resembles the three registered marks set forth below, all three
owned by the same entity and all for goods identified as “dietary and nutritional
supplements” in International Class 5, as to be likely to cause confusion, to cause
mistake, or to deceive.
Registration No. 4238634 for the standard character mark
CARDIO IGNITER (CARDIO disclaimed)2;
Registration No. 4585275 for the standard character mark
PUMP IGNITER3; and
Registration No. 4668500 for the standard character mark
AB IGNITER (AB disclaimed).4
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. 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). See also, In re Majestic Distilling Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion

2 Issued November 6, 2012.
3 Issued August 12, 2014.
4 Issued January 6, 2015.
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analysis, two key considerations are the similarities between the marks and the
similarities between the goods. See 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”). These factors, and any other relevant du
Pont factors in the proceeding now before us, will be considered in this decision.
The Goods/Channels of Trade/Classes of Purchasers
We first consider the second du Pont factor, the relatedness of the goods. In
making our determination regarding the relatedness of the goods, we must look to
the goods as identified in the application and the cited registrations. See Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162
(Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Computers Servs., Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d
1990, 1991 (TTAB 2011).
Where the goods in an application or cited registration are broadly described, such
that there are no restrictions as to trade channels and purchasers, it is presumed that
the recitation of goods encompass not only all goods of the nature and type described
therein, but that the identified goods are provided in all channels of trade which
would be normal therefor, and that they would be purchased by all potential
customers thereof. See, e.g., In re Elbaum, 211 USPQ 639 (TTAB 1981).
As identified, Registrant’s broadly worded “dietary and nutritional supplements”
encompass Applicant’s more narrowly identified “powdered nutritional supplement
Serial No. 87310613
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drink mixes for use in single-serve brewing machines.” Thus, for purposes of our
likelihood of confusion analysis, we find the respective goods legally identical.
Moreover, given the legal identity of goods, we must presume that they would be
offered in the same trade channels for such goods, such as drug, health food and
nutrition specialty stores, and to the same classes of purchasers, including ordinary
consumers seeking nutritional supplements. In re Yawata Iron & Steel Co., 403 F.2d
752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian Associated Charities Inc.
v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). See also In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion).
Applicant’s attempt to distinguish the channels of trade and classes of purchasers
by arguing certain limitations not present in the respective identifications is
unavailing. While Applicant’s identification reflects that its nutritional supplement
drink mixes are intended for use in single-serve brewing machines, we cannot exclude
Registrant’s nutritional supplements from a similar use as Registrant’s identification
includes no limiting language. Nor can we ascribe a level of sophistication to
consumers who purchase what Applicant describes as “specialized coffee products.”
See, e.g., McDonald’s Corp v. McSweet, LLC, 112 USPQ2d 1268, 1283-84 (TTAB 2014)
(“[The Board] cannot resort to extrinsic evidence to restrict the classes of consumers
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and, as a result, ascribe to that subset of consumers a higher level of sophistication
than [it] otherwise would.”).
The Marks
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks, keeping in mind that where, as here, the goods are
legally 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. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enter. Inc. v. Rind, 85 USPQ2d 1104,
1108 (TTAB 2007).
We compare the marks, as we must, in their entireties in terms of sound,
appearance, meaning and commercial impression. See Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). However, there
is nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of the mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). That is, “[t]he 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., 101
USPQ2d at 1721. See also San Fernando Elec. Mfg. Co. v. JFD Electronics
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Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. 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. L’Oreal S.A. v. Marcon, 102
USPQ2d at 1438; 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). Here, the average customer includes members of the general public.
In considering the marks, we compare Applicant’s mark IGNITOR with the cited
registered marks, CARDIO IGNITER, PUMP IGNITER and AB IGNITER. IGNITER
is the dominant portion of all three cited marks because the words CARDIO, PUMP
and AB, respectively, have little to no source-indicating significance; the words
“Cardio” and “Ab” are descriptive and have been disclaimed, and the word “Pump” is
suggestive of pumping iron. As such, these terms are entitled to less weight in our
determination of the source-indicating significance of the mark. See In re Chatam
Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (descriptive terms are
properly given less weight).
In comparison, the dominant feature of the cited marks, IGNITER, is the phonetic
equivalent of Applicant’s mark, IGNITOR, which is also an alternative spelling of
IGNITER.5 The slight differences in the spelling of these words, i.e., Applicant’s use
of an “O” vs. Registrant’s use of an “E” in the last syllable of each, does not distinguish
them and, due to the embedded placement of the different vowels at the end of each

5 April 14, 2017 Office Action, TSDR 9.
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mark, the slight differences may not even be noticed by consumers. See, e.g., In re
Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“Moreover, although
there are certain differences between the marks [CAYNA and CANA] in appearance,
namely, the inclusion of the letter ‘Y’ and the design feature in applicant’s mark, there
are also obvious similarities between them.”). Given the visual and aural similarities
in the marks, it is likely that consumers familiar with the nutritional supplements
sold under Registrant’s marks will perceive Registrant’s and Applicant’s marks as
variant marks with a common source.
Regarding connotation and commercial impression, given the legally identical
goods, to the extent IGNITOR/IGNITER conveys a particular meaning or commercial
impression, it would be the same.
Keeping in mind the fallibility of memory over a period of time, while differences
exist between the respective marks, we find that in their entireties, the marks are
not only substantially similar in appearance and sound due to the phonetically
equivalent common terms IGNITOR/IGNITER but, in light thereof, they are
substantially similar in connotation and convey a substantially similar commercial
impression. See e.g., Spoons Rests. Inc., 23 USPQ2d at 1741 (The fallibility of human
memory is a factor when comparing marks, given that a side-by-side comparison is
not the ordinary way that a prospective consumer would be exposed to marks.).
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
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Third-Party Registrations/Strength of Cited Marks
Applicant has submitted copies of use-based, third-party registrations for marks
covering “dietary and nutritional supplements” and that include either the words
“ignition” or “ignite,” in support of its argument that the word “ignitor” or “igniter” is
diluted and should be afforded a narrow scope of protection. These marks include:
EXTREME IGNITION (Registration No. 2309808); IGNITE MIND BODY SPIRIT
(Registration No. 4028038); IGNITION APG (Registration No. 4653246);
ISO*IGNITE (Registration No. 4719974); LAZER IGNITE MAXX (Registration No.
4719974); LIPO RE-IGNITE (Registration No. 4584506); MUSCLE IGNITION
(Registration No. 4749151); NUTRITION IGNITION (Registration No. 3829077);
AND RIPSTIX IGNITE (Registration No. 4814187).
The “existence of [third-party] registrations is not evidence of what happens in the
market place or that customers are familiar with them.” AMF Inc. v. Am. Leisure
Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973). Nonetheless, in
appropriate cases, third-party registration evidence may show that a term carries a
highly suggestive connotation in the relevant industry and therefore may be
considered somewhat weak, even where the specific extent and impact of the usage
has not been established. Jack Wolfskin Ausrustung Fur Draussen GmbH v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015);
Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675
(Fed. Cir. 2015). In the present case, however, the probative value of the third-party
registrations is significantly diminished because none include the term at issue here,
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IGNITOR/IGNITER, and all include additional wording and design elements not
found in the involved application and cited registrations, which engender a different
commercial impression from the marks involved here.
As for the co-existence of the third-party registrations, we note that the Board is
not bound by the prior decisions of examining attorneys in allowing marks for
registration. It is well established that each case must be decided on its own facts.
See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(“Even if some prior registrations had some characteristics similar to [applicant’s]
application, the PTO’s allowance of such prior registrations does not bind the Board
or this court.”); In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4
USPQ2d 1141, 1142 (Fed. Cir. 1987).
Conclusion
Having considered all of the arguments and evidence pertaining to the relevant
du Pont factors, including those arguments and evidence not specifically addressed
in this decision, we conclude that in view of the similarity of the marks and the
identical channels of trade and classes of consumers, the contemporaneous use of the
respective marks on legally identical goods is likely to cause confusion as to the source
or sponsorship of such goods.
Decision: The refusal to register Applicant’s mark IGNITOR is affirmed.