Trilliant Food and Nutrition, LLC

Trademark Trial and Appeal Board

Jun 28, 2018

No. 87080202 (T.T.A.B. Jun. 28, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Trilliant Food and Nutrition, LLC
_____
Serial No. 87080202
_____
Kyle T. Peterson of Patterson Thuente Pedersen, PA
for Trilliant Food and Nutrition, LLC

Karen Severson, Trademark Examining Attorney, Law Office 117,
Michael Baird, Managing Attorney.
_____
Before Ritchie, Kuczma, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
Trilliant Food and Nutrition, LLC (“Applicant”) seeks registration on the Principal
Register of the mark PRO-TO-GO in standard characters for “protein dietary
supplements sold in individual cartridges for use in single serve coffee brewers” in
Serial No. 87080202
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International Class 5.1 The Examining Attorney refused registration under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion
with the following five registered marks, the last four of which share the same owner:
• PROTEIN-2GO for “Nutritional supplement preparations, namely, protein
supplement beverages and protein supplement beverage concentrated powders
for use as a supplement drink mix, namely, prepackaged individual serving
protein supplement beverage concentrated powders, bulk packaged protein
supplement beverage concentrated powders, and multi-packs of prepackaged
individual serving protein supplement beverage concentrated powders; and
nutritional supplements in the form of protein supplement concentrated
syrups for addition to other drinks, namely, prepackaged individual serving
protein supplement beverage concentrated syrups, bulk packaged protein
supplement beverage concentrated syrups, and multi-packs of prepackaged
individual serving protein supplement beverage concentrated syrups” in
International Class 5; “Milk-based beverages containing protein; mixes for
making milk-based beverages containing protein consisting of concentrated
powders, namely, prepackaged individual serving concentrated powders, bulk
packaged concentrated powders, and multi-packs of prepackaged individual
serving concentrated powders; and mixes for making milk-based beverages
containing protein consisting of concentrated syrups, namely, prepackaged
individual serving concentrated syrups, bulk packaged concentrated syrups,
and multi-packs of prepackaged individual serving concentrated syrups” in
International Class 29; “Non-alcoholic beverages containing protein, namely,
carbonated beverages, non-carbonated beverages in the nature of drinking
waters, vegetable juice based beverages, fruit juice based beverages, and malt
beverages; concentrated powders for making the above beverages, namely,
prepackaged individual serving concentrated powders and syrups, bulk
packaged concentrated powders and syrups, and multi-packs of prepackaged
individual serving concentrated powders and syrups” in International Class
32.2

• PRO ON-THE-GO for “Dietary and nutritional supplements in powder,
capsule, tablet, gel or liquid form, all the foregoing containing protein” in
International Class 5.3

1 Application Serial No. 87080202 was filed June 22, 2016 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce.
2 Registration No. 3463893 issued July 8, 2008; renewed. It includes a disclaimer of
PROTEIN.
3 Registration No. 4993530 issued July 5, 2016.
Serial No. 87080202
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• KIDS PROTEIN ON-THE-GO for “Dietary and nutritional supplements, all of
which contain protein” in International Class 5.4

• PROTEIN ON-THE-GO for “Dietary and nutritional supplements, all of which
contain protein” in International Class 5.5

• PROTEIN ON-THE-GO PREMIUM for “Enhanced dietary and nutritional
supplements containing additives, all of which contain protein” in
International Class 5.6

After the Examining Attorney made the refusal final, Applicant appealed.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944 (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.”).

4 Registration No. 5283617 issued September 12, 2017. It includes a disclaimer of KIDS
PROTEIN.
5 Registration No. 5283618 issued September 12, 2017. It includes a disclaimer of PROTEIN.
6 Registration No. 5283619 issued September 12, 2017. It includes a disclaimer of PROTEIN
and PREMIUM.
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We focus our analysis on the first two cited registrations above, Registration No.
3463893 for PROTEIN-2GO (“‘893 Registration”) and Registration No. 4993530 for
PRO ON-THE-GO (“‘530 Registration”). If we find no likelihood of confusion as to the
marks and goods in these registrations, then it follows there would be no likelihood
of confusion as to the other cited registrations, in which the marks are less similar to
Applicant’s. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2008)
(confining likelihood of confusion analysis to one of multiple cited registrations
deemed closest to the applied-for mark).
A. The Relatedness of the Goods
As to the goods, we must determine whether their degree of relatedness rises to
such a level that consumers would mistakenly believe the parties’ goods emanate
from the same source. The test is not whether consumers would be likely to confuse
the goods, but rather whether they would be likely to be confused as to their source.
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). In making this analysis of the
second du Pont factor, we look to the identifications of goods in the subject application
and cited registrations, not to extrinsic evidence of how the marks are actually used.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The subject application identifies “protein dietary supplements sold in individual
cartridges for use in single serve coffee brewers,” while the cited ‘893 Registration
includes “Nutritional supplement preparations, namely, … prepackaged individual
Serial No. 87080202
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serving protein supplement beverage concentrated powders” as well as “nutritional
supplements in the form of protein supplement concentrated syrups for addition to
other drinks, namely, prepackaged individual serving protein supplement beverage
concentrated syrups,” and the ‘530 Registration identifies “Dietary and nutritional
supplements in powder, capsule, tablet, gel or liquid form, all the foregoing containing
protein.” The Examining Attorney argues that the goods are legally identical because
the “goods are all protein supplements.”7 Applicant did not advance any alleged
distinction between dietary supplements and nutritional supplements, and the
ordinary meanings of “dietary” and “nutritional” are consistent with finding these
types of supplements legally identical.8 The cited registrations both encompass
protein dietary supplements in powder9 or syrup/liquid form, therefore including
those that might be packaged in cartridges for single serve coffee brewers.10 See In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (unrestricted and broad
identifications are presumed to encompass all goods of the type described).

7 6 TTABVUE 9 (Examining Attorney’s Brief).
8 We take judicial notice of the definitions of “nutritional” and “dietary” from the online
Random House Dictionary, www.dictionary.com. See Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). “Nutritional” is
the adjective form of “nutrition,” defined as “the act or process of nourishing or of being
nourished.” “Dietary” means “of or relating to diet,” which in turn is defined as “food and
drink considered in terms of its qualities, composition, and its effects on health.”
9 The record includes examples of other protein supplement coffee products, some of which
make clear that the goods are in powder form. E.g., TSDR December 28, 2017 Office Action
at 20 (“Add 2 tbsp of BuzzFit Protein Coffee powder into an empty mug”); id. at 22
(Truenutrition Protein Coffee displayed in powder form and described as coffee beans “mixed
with a single standard serving of True Nutrition’s top-selling protein powder”).
10 See, e.g., TSDR December 28, 2017 Office Action at 30 (Lono Life Protein Coffee K-Cups
containing coffee and protein).
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Applicant’s arguments on this du Pont factor focus only on allegations that the
specimens of use for the cited registrations do not show the use on protein supplement
cartridges for coffee brewing machines.11 However, the scope of the cited
registrations’ identified goods cannot be limited based on the specimens, which are
particular examples of use in commerce. Instead, we must consider the goods as they
are identified in the registrations. See Paula Payne Prods. Co. v. Johnson Publ’g Co.,
Inc., 473 F.2d 901, 177 USPQ 76, 77-78 (CCPA 1973) (Board must “give full sweep”
to an identification of goods regardless of registrant’s actual business); see also
Octocom, 16 USPQ2d at 1787 (identifications are controlling).
We find the goods overlapping, and the second du Pont factor therefore strongly
weighs in favor of a finding of likely confusion.
B. Trade Channels and Classes of Consumers
Because the goods are legally identical in part, we must therefore presume that
the channels of trade are also identical. See In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal
presumption in determining likelihood of confusion); Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding
that where the identification is unrestricted, “we must deem the goods to travel in all
appropriate trade channels to all potential purchasers of such goods”). Applicant’s
argument that the trade channels and consumers differ because the actual goods

11 4 TTABVUE 7-8 (Applicant’s Brief).
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differ again erroneously relies on alleged marketplace realities not reflected in the
identifications of goods. Thus, this argument is unpersuasive, and we find that the
overlapping goods travel in the same channels of trade to the same classes of
consumers. The third du Pont factor strongly weighs in favor of a finding of likely
confusion.
C. Number and Nature of Similar Marks for Similar Goods
Because the strength of the cited marks under the sixth du Pont factor impacts
our comparison of the marks, we next address Applicant’s claim under this factor that
“the shared prefix ‘PRO’ and suffix ‘GO’” deserve a narrow scope of protection in view
of third-party uses of allegedly similar terms for goods in International Class 5.12 The
Federal Circuit has held that evidence of extensive registration and use of a term by
others for similar goods can be “powerful” evidence of the term’s weakness. Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If the evidence
establishes that the consuming public is exposed to widespread third-party use of
similar marks for similar goods, it “is relevant to show that a mark is relatively weak
and entitled to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693
(Fed. Cir. 2005). However, Applicant points to no evidence of third-party actual use,
and instead relies only on three third-party registrations that contain the terms

12 4 TTABVUE 12 (Applicant’s Brief).
Serial No. 87080202
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“PRO” and “GO.” Applicant’s record thus does not demonstrate commercial weakness
from third-party use, and does not show that consumers are conditioned to
distinguish among marks including PRO and GO. Nonetheless, even where the record
lacks proof of actual third-party use, third-party registration evidence may show
conceptual weakness, in that a term carries a suggestive or descriptive connotation
in the relevant industry. See In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB
1987). In addition to the cited registrations, Applicant relies on the following three
use-based third-party registrations:13
• READY TO GO PRO for herbal supplements14
• GO PRO for goods that include dietary supplements for animals15
• FITPRO GO! For dietary and nutritional supplements16
We agree with the Examining Attorney that in the third-party registrations,
which are not explicitly directed to protein supplements, the use of the phrase “GO
PRO” in the first two marks and “FITPRO GO” in the third mark may create a
different commercial impression than the applied-for and cited marks. In particular,

13 We have not considered pending applications, such as Application Serial No. 85867305
(TSDR December 10, 2017 Response to Office Action at 12-14). Pending applications are
evidence only that the applications were filed on a certain date; they are not evidence of use
of the marks. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007);
Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003); In re
Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694, 1699 (TTAB 1992).
14 TSDR December 10, 2017 Response to Office Action TSDR at 9-11 (Registration No.
3811472).
15 TSDR December 10, 2017 Response to Office Action at 15-16 (Registration No. 4663240).
16 TSDR December 10, 2017 Response to Office Action at 18-19 (Registration No. 5073032).
Serial No. 87080202
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because “pro” can be defined as “professional,”17 the “GO PRO” phrase used in those
marks can carry the meaning of becoming a professional, such as when an amateur
athlete “goes pro.” Similarly, the “FITPRO” phrase may carry the connotation of a fit
professional or a fitness professional. By contrast, the applied-for and cited marks
PRO-TO-GO, PROTEIN-2GO, and PRO ON-THE-GO, which are limited to protein
supplements, seem more likely solely to convey the impression of protein in a portable
form, as discussed below, without any double entendre. Regardless, even if the
commercial impressions of the third-party marks were more similar to the cited
marks, the small quantity of third-party registration evidence by itself does not rise
to the level required to show that the terms in the cited marks are conceptually weak
and deserving of less protection.
However, the record also includes evidence that the terms “pro” and “to go” or “on-
the-go” all carry a suggestive or descriptive meaning in reference to the goods.18 The
‘893 and ‘530 Registrations, which have different owners, provide additional evidence
that “pro” and “go” have some significance in the industry. Thus, considering the
record in its entirety, we find some degree of conceptual weakness of these terms. Yet
even if the cited marks contain some descriptive or suggestive terms, they still are
entitled to appropriate protection against the registration of confusingly similar
marks. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,

17 We take judicial notice of the entry for “pro” in the online Random House Dictionary,
www.dictionary.com.
18 TSDR October 1, 2016 Office Action at 14 (“pro” as an abbreviation of “protein”), 20
(definition of “to go” as “to be taken elsewhere to be eaten”); TSDR December 28, 2017 Office
Action at 30 (third party use of “on-the-go lifestyle” in connection with similar goods).
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109 (CCPA 1974); Max Capital, 93 USPQ2d at 1246; see also In re Clorox Co., 578
F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (ERASE for a laundry soil and stain
remover held confusingly similar to STAIN ERASER, registered on the Supplemental
Register, for a stain remover).
D. Similarity of the Marks
We turn to comparing the applied-for and cited marks “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay, 73 USPQ2d
at 1691 (quoting du Pont, 177 USPQ at 567). The test assesses not whether the marks
can be distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom
Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). We bear in mind that
where, as here, marks would appear on legally identical goods, the degree of
similarity necessary to support a conclusion of likely confusion declines. Century 21
Real Estate v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir.1992); see also Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d
1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010).
First, comparing PRO-TO-GO to the cited mark PRO ON-THE-GO, the marks
share a strong similarity in sight and sound, as both begin with PRO and end with
GO, with minimal wording in between. Applicant’s mark separates PRO and GO with
the one-syllable preposition TO, and the cited mark separates PRO and GO with the
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one-syllable preposition ON and the definite article THE. Both marks also include
hyphens between some or all of the words. We find that the use of PRO as the first
word of both marks makes it “most 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). Second, comparing PRO-TO-GO with PROTEIN-2GO, these
marks also look and sound similar. While Applicant’s mark begins with PRO, the
abbreviation of the word PROTEIN found in the cited mark, the difference does not
create a substantial distinction in appearance or sound. The remainder of the marks
are phonetically identical and close in appearance, as the use of the numeral “2” as a
phonetic substitute for the word “to” and the absence of a hyphen are not significant
differences. The substitution of numbers or special characters for words or letters has
typically been found to be inconsequential to the sound and meaning. See, e.g., In
Home Federal Savings and Loan Ass’n, 213 USPQ 68, 69 (TTAB 1982) (TRAN$
FUND deemed similar to TRANSFUND). Overall, Applicant’s mark and both cited
marks look and sound very similar. See In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (“in articulating reasons for reaching a conclusion on
the issue of confusion, 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”); see also
Stone Lion Capital Partners 110 USPQ2d at 1161.
The meanings and commercial impressions of the marks are essentially the same.
In the context of these marks for protein supplements, PRO refers to protein, and TO-
Serial No. 87080202
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GO (or 2GO) refers to it being portable.19 The expression ON-THE-GO can mean
“while going from place to place.”20 Thus, both marks have the meaning and
impression of protein that can be transported.
Given their resemblance in sound, appearance, connotation and commercial
impression, Applicant’s mark and the cited marks are very similar. Even taking into
account the conceptual weakness of the terms PRO and GO, the overall similarities
in the marks result in this factor supporting a finding of likelihood of confusion. While
Applicant argues that the coexistence of the ‘893 and ‘530 Registrations, owned by
different registrants, weighs in favor of registering its mark, we disagree. We find
Applicant’s mark more similar to each of the cited marks than they are to each other,
and regardless, each case must be decided on its own merits and record, and the
Board is not bound by prior registrations. In re Shinnecock Smoke Shop, 571 F.3d
1171, 91 USPQ2d 1218, 1221 (Fed. Cir. 2009) (“Applicant’s allegations regarding
similar marks are irrelevant because each application must be considered on its own
merits.”); 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 Nett
Designs’ application, the PTO’s allowance of such prior registrations does not bind
the Board or this court.”).

19 We take judicial notice of the entry for the idiom “to go” in the online Random House
Dictionary, www.dictionary.com (“Informal. (of food) for consumption off the premises where
sold: coffee to go.”).
20 We take judicial notice of the entry for the idiom “on the go” in the online Random House
Dictionary, www.dictionary.com (“a. very busy; active: She’s always on the go. b. while going
from place to place; while traveling.”).
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III. Conclusion
The overall similarity of these marks for in-part identical goods that move in the
same channels of trade to the same classes of customers renders confusion likely.
Decision: The refusal to register Applicant’s mark is affirmed due to a likelihood
of confusion with Registration Nos. 3463893 and 4993530.