VDF FutureCeuticals, Inc.v.Owen Ryan

Trademark Trial and Appeal Board

Oct 17, 2018

No. 92062086 (T.T.A.B. Oct. 17, 2018)

This Opinion is Not a
Precedent of the TTAB

Hearing: October 2, 2018 Mailed: October 17, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

VDF FutureCeuticals, Inc.
v.
Owen Ryan
_____

Opposition No. 91221928
Cancellation No. 92062086
_____

Tiffany A. Blofield and Tucker A. Chambers of Winthrop & Weinstine PA,
for VDF FutureCeuticals, Inc.
Owen Ryan pro se.
_____

Before Taylor, Bergsman, and Greenbaum,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Owen Ryan (“Defendant”) seeks registration on the Principal Register for the
mark VITAMIN BLUE (standard characters) for “non-alcoholic beverages, namely,
soft drinks and fruit juices containing vitamins,” in Class 32.1 Defendant disclaimed
the exclusive right to use the word “Vitamin.”

1 Application Serial No. 86182052, filed February 2, 2014, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Defendant’s first use of the mark anywhere
and first use of the mark in commerce as of January 6, 2014.
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Defendant is the owner of Registration No. 4418801 for the mark VITAMIN BLUE
(standard characters) for “yogurt drinks, fruit based snack food,” in Class 29.2
Defendant disclaimed the exclusive right to use the word “Vitamin.”
VDF FutureCeuticals, Inc. (“Plaintiff”) filed a Notice of Opposition against the
registration of Defendant’s mark and a Petition to Cancel Defendant’s registered
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
that Defendant’s mark for the listed goods so resembles Plaintiff’s registered marks
listed below as to be likely to cause confusion:
• Registration No. 2849217 for the mark VITABLUE (typed drawing) for
“herbal supplement, namely wildberry polyphenol extract,” in Class 5;3
• Registration No. 2885094 for the mark VITABLUE and design, shown
below, for “dietary supplement,” in Class 5;4

Plaintiff disclaimed the exclusive right to use the word “Blue.”

2 Registered October 15, 2013, based on application Serial No. 77830475 filed on September
19, 2009.
3 Registered June 1, 2004; renewed.
4 Registered September 14, 2004; renewed. The registration does not include a description of
the mark.
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• Registration No. 3074359 for the mark VITABLUE (standard characters)
for “nutraceuticals for use as a nutritional supplement and as a nutritional
supplement ingredient,” in Class 5.5
Plaintiff also alleges that it has a family of “VITA” marks including VITABLUE,
VITABERRY, VITACHERRY, VITACRAN, VITACURRANT, VITAGRANATE, and
VITAVEGGIE.6
Plaintiff amended its pleadings to include a claim that Defendant’s application
and registration are void ab initio on the ground that Defendant’s predecessor-in-
interest was not the proper applicant.7
Defendant, in his Answers, denied the salient allegations in the Notice of
Opposition and Petition for Cancellation and filed a counterclaim to cancel Plaintiff’s
pleaded registrations on the ground that Plaintiff has abandoned the VITABLUE
mark.
Plaintiff denied the salient allegations in the counterclaim to cancel Plaintiff’s
pleaded registrations.

5 Registered March 28, 2006; renewed.
6 Notice of Opposition ¶8 (1 TTABVUE 6); Petition for Cancellation ¶11 (1 TTABVUE 6).
Even though Plaintiff did not refer to its pleaded family of marks in its brief, at the hearing,
Plaintiff said that it did not waive its family of mark claim. However, Applicant provided no
evidentiary support for this claim and therefore we give it no further consideration. See
Alacatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB
2013)
7 28 and 29 TTABVUE.
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Proceedings were consolidated in the Board’s September 11, 2015 Order.8 All
references to the record are to the record in Opposition No. 91221928 unless otherwise
indicated.
On May 30, 2018, Defendant filed a combined trial brief and withdrawal of the
counterclaim to cancel Plaintiff’s pleaded registrations without Plaintiff’s written
consent. In an order dated June 7, 2018, the Board dismissed the counterclaims with
prejudice. Trademark Rules 2.106 (b)(2)(iii) and 2.114(c).9
I. Evidentiary Issue
Pursuant to the Board’s April 3, 2017 Order, Defendant’s trial period was set to
close November 15, 2017.10
On November 20, 2017, Defendant filed his testimony declaration.11 Defendant
did not file a motion to extend or to reopen his testimony period.
Plaintiff objects to Defendant’s testimony declaration on the ground that it was
not timely filed.12 In opposition to Plaintiff’s objection to Defendant’s testimony
declaration, Defendant did not explain why his declaration was not timely filed, nor
why Defendant did not file a request for an extension of time to file his testimony

8 12 TTABVUE.
9 54 TTABVUE.
10 36 TTABVUE 6.
11 45 TTABVUE.
12 48 TTABVUE 25.
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declaration.13 Instead, Defendant explained the probative value of his testimony
declaration and argued that it must be considered in the interest of justice.14
A party may not take a testimony deposition or submit a testimony affidavit or
declaration outside of its assigned testimony period, except by stipulation of the
parties approved by the Board, or on motion granted by the Board, or by order of the
Board. Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a); see also TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 703.03(b)(1) (2018).
Plaintiff’s objection to Defendant’s testimony declaration is sustained.
Defendant’s testimony declaration will not be considered.
Even if we were to consider Defendant’s testimony declaration, it would not have
a bearing on our decision for two reasons. First, Defendant’s evidence that Plaintiff
purportedly does not sell ready-to-drink products to the ultimate consumer is not
relevant because Plaintiff’s descriptions of goods are not so limited. We must consider
the goods as they are described in the application and registrations. Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990). We may not read limitations or restrictions

13 Defendant’s Brief, pp. 3-5 (30 TTABVUE 4-6).
14 Defendant’s Brief, pp. 3-5 (49 TTABVUE 4-6). We assume that Defendant is requesting
relief from having to follow the rules of practice because of his pro se status. Defendant’s
Brief, p. 5 (49 TTABVUE 6) (“At a minimum, justice demands, and equities in this case argue,
that the Board lean to considering the content of these emails, no matter how handicapped
their delivery, or how bumbling or inept their Pro Se messenger may be.”). Nevertheless, in
the April 3, 2017 Order, the Board “strongly advised” Defendant to seek counsel and
expressly stated that “strict compliance with the Trademark Rules of Practice … is required
of all parties, whether or not they are represented by counsel.”
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into the description of goods, no matter what the evidence shows about the goods,
channels of trade or classes of consumers. In re i.am.symbolic, LLC, 866 F.3d 1315,
123 USPQ2d 1744, 1748 (Fed. Cir. 2017); Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 940 (Fed. Cir. 1983). Plaintiff’s description of goods is unrestricted and,
therefore, it encompasses nutraceuticals sold to the ultimate consumer as well as
nutraceuticals used in the products of others.
Second, Defendant’s assertion that his evidence shows that “some measure of
fraud was afoot from the very inception of Plaintiff/Petitioner’s case” with respect to
the use of the marks in Plaintiff’s pleaded registrations cannot be considered because
Defendant did not counterclaim to cancel Plaintiff’s pleaded registrations on the
ground of fraud. A party may not rely on an unpleaded claim. See UVeritech, Inc. v.
Amax Lighting, Inc., 115 USPQ2d 1242, 1244 (TTAB 2015) (unpleaded allegations
relating to fraud, acquiescence and laches will not be heard); Kohler Co. v. Baldwin
Hardware Corp., 82 USPQ2d 1100, 1103 n.3 (TTAB 2007) (raising claim for first time
in plaintiff’s brief is manifestly untimely; belated fraud claim given no further
consideration); cf. ChaCha Search Inc. v. Grape Tech. Grp. Inc., 105 USPQ2d 1298,
1302 (TTAB 2012) (counterclaim plaintiff may not seek or obtain judgment on
proposed new claims because motion to amend counterclaim denied). In any event, as
noted above, Defendant withdrew his counterclaim. Trademark Rules 2.106(b)(3)(ii)
and 2.114(b)(3)(ii), 37 C.F.R. §§ 2.106(b)(3)(ii) and 2.114(b)(3)(ii) (a defendant may not
attack the validity of plaintiff’s pleaded registrations unless the defendant files a
counterclaim to cancel those registrations).
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Finally, we note that Defendant included nine links to Internet websites as part
of his declaration. Because Defendant did not attach any webpages from these
websites, merely providing a link to an Internet site cannot guarantee its authenticity
because the nature of a web site is dynamic, not static. See In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1195 n.21 (TTAB 2018) (“we do not consider websites for
which only links are provided); In re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB
2017) (“Because the information displayed at a link’s Internet address can be changed
or deleted, merely providing a link to a website is insufficient to make information
from that site of record.”); In re HSB Solomon Associates, LLC, 102 USPQ2d 1269,
1274 (TTAB 2012) (the Board will not utilize a link or reference to a website’s internet
address to access the site to consider whatever content may appear therein); In re
Planalytics Inc., 70 USPQ2d 1453, 1458 (TTAB 2004) (links are not enough to make
websites of record); cf. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1833 (Fed. Cir. 2007) (“Search engine results - which may provide little context to
discern how a term is actually used on the webpage that can be accessed through the
search result link - may be insufficient to determine the nature of the use of a term
or the relevance of the search result to registration considerations”).
II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Defendant’s application and registration files.
Plaintiff filed a notice of reliance on the following items:

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A. Copies of Plaintiff’s pleaded registrations printed from the USPTO
electronic database showing the current status of and title to the
registrations;15
B. Copies of Plaintiff’s Registration Nos. 2875577, 2930938, and 2846752
for the mark VITABERRY and Registration No. 3107590 for the mark
VITABERRY PLUS;16
C. Copies of third-party registrations which purportedly show that the
goods listed in Defendant’s application and registration are related to
the goods in Plaintiff’s pleaded registrations and copies of excerpts from
websites purportedly showing the registered marks in use;17
D. Excerpts from third-party websites which purportedly show that the
goods listed in Defendant’s application and registration move in the
same channels of trade and are sold to the same classes of consumers as
the goods in Plaintiff’s pleaded registrations;18 and
E. Declaration of John Hunter, Plaintiff’s Vice President and General
Manager.19
III. Standing
A threshold issue in every inter partes case is the plaintiff's standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc., 94

15 39 TTABVUE 30-56.
16 39 TTABVUE 58-79. Plaintiff also submitted copies of registrations for COFFEEBERRY
marks which, as far as we can tell, have no relevance in these proceedings. 39 TTABVUE 81-
107.
17 39 TTABVUE 108-1030.
18 39 TTABVUE 1032-1232 and 40 TTABVUE. On March 30, 2018, Plaintiff introduced
Exhibits 417-469 which inadvertently were omitted from Plaintiff’s first notice of reliance. 47
TTABVUE.
19 44 TTABVUE. The exhibits designated as confidential are posted at 41 and 42 TTABVUE.
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USPQ2d 1942, 1945 (TTAB 2010). To establish standing in an opposition or
cancellation proceeding, a plaintiff must prove that it has a “real interest,” i.e., a
“reasonable” basis for its belief of damage. See Empresa Cubana, 111 USPQ2d at
1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999);
Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB
1982).
Plaintiff has established its standing by properly introducing into evidence its
pleaded registrations. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1844 (Fed. Cir. 2000); N.Y. Yankees P’ship v. IET Prods. & Servs.,
Inc., 114 USPQ2d 1497, 1501 (TTAB 2015). Defendant, in his brief, does not contest
Plaintiff’s standing.
IV. Priority
With respect to the opposition, because Plaintiff’s pleaded registrations are of
record, priority is not at issue with respect to the goods identified in Plaintiff’s
pleaded registrations. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464,
1469 (TTAB 2016) (citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 110 (CCPA 1974). Defendant, in his brief, does not contest
Plaintiff’s priority.
In a cancellation proceeding, it is the Board's practice “to hold that [as a practical
matter] a petitioner, whether a registrant or not, must, in the first instance, establish
prior rights in the same or a similar mark and the respondent in turn can defeat the
petitioner's claim of damage by establishing that, as between the parties, it possesses
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[prior] superior rights in the mark sought to be cancelled.” Brewski Beer Co. v.
Brewski Bros. Inc., 47 USPQ2d 1281, 1284 (TTAB 1998) (quoting U. S. Mineral Prods.
v. GAF Corp., 197 USPQ 301, 305 (TTAB 1977); Pamex Foods, Inc. v. Clover Club
Foods, Inc., 201 USPQ 308. 313 (TTAB 1978) (“Thus, the Board has taken the
position, in essence, that the registrations of each party offset each other; that
petitioner as a plaintiff, must, in the first instance, establish prior rights in the same
or similar mark . . .”). See also Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC,
110 USPQ2d 1458, 1474 (TTAB 2014) (“In a cancellation proceeding such as this one
where both parties own registrations, priority is in issue.”).
Of course, a petitioner or respondent may rely on its registration for the limited
purpose of proving that its mark was in use as of the application filing date. Thus, a
petitioner -- whose application filing date was earlier than respondent's application
filing date -- could take its chances and elect to make of record simply a copy(s) of its
registration. Trademark Rules 2.122(d)(1) and 2.122(d)(2). By so doing, petitioner's
proven first use date of its mark would then be the filing date of the application.
However, if respondent thereafter proved an actual first use date pre-dating
petitioner's filing date, the issue of priority, and hence petitioner's Section 2(d) claim,
would be resolved in favor of respondent.
Defendant’s Registration No. 4418801 issued October 15, 2013 based on an
application filed September 19, 2009. Defendant did not introduce any evidence to
prove his first use earlier than the filing date of his application.
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For the sake of economy, we confine our analysis to the issue of likelihood of
confusion between Defendant’s mark and the mark in Registration No. 3074359 for
the mark VITABLUE (standard characters) for “nutraceuticals for use as a
nutritional supplement and as a nutritional supplement ingredient,” in Class 5. Of
all of Plaintiff’s pleaded registrations, the mark in this registration is one is the most
similar to Defendant’s mark and is registered for goods that are most similar to
Defendant’s goods. If the refusal cannot be affirmed on the basis of this registered
mark, it could not be affirmed on the basis of the other cited marks. See In re Max
Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Plaintiff’s Registration No. 3074359 issued March 28, 2006 based on an
application filed November 6, 2003. In view of the foregoing, Plaintiff has proven its
prior use of the mark VITA BLUE for “nutraceuticals for use as a nutritional
supplement and as a nutritional supplement ingredient” in the Cancellation.
V. Likelihood of Confusion
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) (“Du Pont”) cited in B&B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each Du Pont factor that is relevant or for which there is evidence of
record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
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1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015) (“While we have considered each factor for which we have
evidence, we focus our analysis on those factors we find to be relevant.”). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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.”); see also
In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017)
(“The likelihood of confusion analysis considers all DuPont factors for which there is
record evidence but ‘may focus … on dispositive factors, such as similarity of the
marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. The similarity or dissimilarity of the marks.

We turn first to the Du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. Du Pont, 177 USPQ at 567. “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
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(Fed. Cir. 2012); see also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle
S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec.
Mfg. Co. v. JFD Elec. 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. Geigy
Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA
1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); 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). Inasmuch as the goods at
issue are nutraceuticals, “non-alcoholic beverages, namely, soft drinks and fruit
juices containing vitamins,” and “yogurt drinks, fruit based snack food,” the average
customer includes consumers with an interest in nutritional supplements.
We begin our comparison of the marks by noting that the space between the words
“Vitamin” and “Blue” in Defendant’s VITAMIN BLUE that is missing between the
terms “Vita” and “Blue” in Plaintiff’s mark VITABLUE is not significant. See, e.g.,
Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD
and SEAGUARD are "essentially identical"); In re Best Western Family Steak House,
Inc., 222 USPQ 827, 827 (TTAB 1984) (“there can be little doubt that the marks
[BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and
bologna] are practically identical and indeed Defendant has not argued otherwise.”)
(Emphasis in the original). cf. Minn. Mining & Mfg. Co. v. Addressograph-Multigraph
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Corp., 155 USPQ 470, 472 (TTAB 1967) (“[i]t is almost too well established to cite
cases for the proposition that an otherwise merely descriptive term is not made any
less so by merely omitting spaces between the words”).
The marks are similar in sound and appearance. Both marks begin with VITA and
end in BLUE. Although Defendant’s mark includes an additional syllable, it is in the
middle portion of the mark. “As seen and spoken, this middle portion may be missed
by many of the relevant purchasers.” Alfacell v. Anticancer Inc., 71 USPQ2d 1301,
1305 (TTAB 2004) (ONCASE is similar to ONCONASE); In re Great Lakes Canning,
Inc., 227 USPQ 483, 485 (TTAB 1985) (CAYNA is similar to CANA).
The difference between Defendant’s mark VITAMIN BLUE and Plaintiff’s mark
VITABLUE is the letters “Min” which make up the middle syllable in Defendant’s
mark VITAMIN BLUE. However, when the term “Vita” is used in connection with
“nutraceuticals for use as a nutritional supplement and as a nutritional supplement
ingredient,”20 it may be perceived as an abbreviation for the word “Vitamin” and,
thus, have the same meaning and engender the same commercial impression as the
word “Vitamin.”21 Where a significant segment of the relevant public would perceive

20 The word “nutraceutical” is defined as “a foodstuff (such as fortified food or dietary
supplement) that provides health benefits in addition to basic nutritional value.” MERRIAM-
WEBSTER (merriam-webster.com). The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP,
110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir.
2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB
2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
21 We acknowledge that “vit,” not “vita,” is the dictionary abbreviation of the word “Vitamin.”
MERRIAM-WEBSTER (merriam-webster.com). While the dictionary is an obvious source of
meaning, consumer perceptions are not limited to dictionary definitions. See Scotch Whisky
Ass’n v. Majestic Distilling Co., Inc., 958 F.2d 594, 22 USPQ2d 1050, 1053 (4th Cir. 1992)
(“Although the dictionary defines Black Watch as a Scottish infantry regiment, SWA
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the marks to be similar, there may be a likelihood of confusion. See In re White Swan
Ltd., 8 USPQ2d 1534, 1536 (TTAB 1988) (a “significant minority of consumers would
perceive” SHAKE SCATTER & GROW to be similar to SHAKE-N-GROW). In this
regard, we note that consumers tend to shorten or abbreviate marks. See Fiserv, Inc.
v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1919 (TTAB 2015) (while there
was no indication that the mark PMONEY had any particular meaning other than
the letter “P” plus the term “Money,” the Board found it likely that with overlapping
services, consumers will perceive PMONEY as an abbreviation for POPMONEY);
Barbara’s Bakery, Inc. v. Landesman, 82 USPQ2d 1283, 1288 (TTAB 2007)
(BARBARA’S BAKERY is similar to BARB’S BUNS BAKERY in short because Barb
is a nickname or shortened version of Barbara).
The dominant portion of Defendant’s mark is the word “Blue” because the word
“Vitamin” when used in connection with “non-alcoholic beverages, namely, soft drinks
and fruit juices containing vitamins” is descriptive and, therefore, Defendant
disclaimed the exclusive right to use that word. Likewise, Defendant disclaimed the
exclusive right to use the word “Vitamin” in connection with “yogurt drinks, fruit

produced no evidence that the public would understand it as such.”); see also Presto Prods.,
Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“the significance of a mark
must be determined not in the abstract, but rather in relation to the goods or services to
which it is applied, and the context in which it is used, because that is how the mark is
encountered by purchasers.”); Northwestern Golf Co. v. Acushnet Co., 226 USPQ 240 (TTAB
1985) (“Evidence of the context in which a particular mark is used on labels, packaging, etc.,
or in advertising is probative of the significance which the mark is likely to project to
purchasers.”).
Because the significance of a mark is determined in relation to the goods on which it is used,
Defendant’s argument that “Vita” means “curriculum vitae” is not relevant inasmuch as the
goods identified in Plaintiff’s registration are nutraceuticals. Defendant’s Brief, p. 18 (49
TTABVUE 19).
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based snack food” in response to the requirement during the prosecution of its
application because the word “Vitamin” is descriptive of an ingredient of Defendant’s
goods.22 It is well-settled that disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive
terms, this court has noted that the ‘descriptive component of a mark may be given
little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re
Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code
Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often
“less significant in creating the mark’s commercial impression”). While the similarity
or dissimilarity of the marks is determined based on the marks in their entireties,
there is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, such as a common dominant element,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re Nat’l Data Corp., 224 USPQ at 751; see also In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
For the same reasons, we find that the dominant portion of Plaintiff’s mark
VITABLUE is the word “Blue.” Accordingly, we find that the dominant part of both
marks is the word “Blue.” “[I]f the dominant portion of both marks is the same, then

22 December 17, 2009 Office Action (TSDR 1) and April 21, 2010 Response to Office Action
(TSDR 2) in the file for Registration No. 4418801.
The reference to the USPTO TSDR database is to the downloadable .pdf format.
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confusion may be likely notwithstanding peripheral differences.” In re Denisi, 225
USPQ 624, 624 (TTAB 1985). The peripheral differences between the marks in this
case (the use of the word “Vitamin” instead of the abbreviation “Vita” and the space
between “Vitamin” and “Blue” in Defendant’s mark missing in Plaintiff’s mark) fail
to distinguish the marks.23
In view of the foregoing, we find that the marks VITAMIN BLUE and VITABLUE
are similar in their entireties in terms of appearance, sound, connotation, and
commercial impression.
B. The similarity or dissimilarity and nature of the goods.
We start our analysis regarding the similarity or dissimilarity and nature of the
goods by defining the goods in the parties’ descriptions of goods and in the third-party
websites that Plaintiff introduced into evidence. These definitions help us evaluate
the products identified in the third-party registrations and website evidence to
determine whether Plaintiff’s nutraceuticals or nutritional supplements and
Defendant’s “soft drinks and fruit juices containing vitamins” and “yogurt drinks,
fruit based snack food” are related.

23 The Board has often held that it is the first part of a mark which is most likely to be
impressed upon the mind of the consumer and remembered. See e.g., Presto Prod. Inc. v. Nice-
Pak Prod., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). However, that general rule applies where
the first part of the mark is a strong distinctive term. See Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
In this case, because VITAMIN and VITA are descriptive and, therefore, inherently weak,
the general rule does not apply.
Opposition No. 91221928
Cancellation No. 92062086
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As noted above, the word “nutraceutical” is defined as “a foodstuff (such as
fortified food or dietary supplement) that provides health benefits in addition to basic
nutritional value.”24
A “nutritional supplement” is defined as “vitamins, minerals, herbs, meal
supplements, sports nutrition products, natural food supplements and other related
products used to boost the nutritional content of the diet.”25
A “soft drink” is “a beverage that is not alcoholic or intoxicating and is usually
carbonated, as root beer or ginger ale.”26 Plaintiff did not introduce any relevant
evidence regarding soft drinks.
Fruit juice is described as follows:
After fresh fruit, one of the most common fruit products is
fruit juice. Fruit juice can take on many forms, including a
natural-style cloudy product, a “nectar”-type product
containing suspended solids, a fully clarified juice, juice
concentrate, and fruit drinks.27
Defendant’s original description of goods was “non-alcoholic beverages including
soft drinks and fruit juices.” Through an Examiner’s Amendment during the
prosecution of the application, Defendant amended the description of goods to “non-

24 MERRIAM-WEBSTER (merriam-webster.com).
25 Medical-dictionary.thefreedictionary.com (47 TTABVUE 204).
26 Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018). See also
MERRIAM-WEBSTER (merriam-webster.com) (“usually a carbonated nonalcoholic beverage”);
Soft Drink, ENCYCLOPAEDIA BRITANNICA (britannica.com). The Board may take judicial
notice of information from encyclopedias. B.V.D. Licensing Corp. v. Body Action Design Inc.,
846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be
consulted”); Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98
USPQ2d 1921, 1934 n.61 (TTAB 2011); In re Broyhill Furniture Indus. Inc., 60 USPQ2d 1511,
1514 n.4 (TTAB 2001) (dictionary entries and other standard reference works).
27 Fruit processing, ENCYCLOPAEDIA BRITANNICA.
Opposition No. 91221928
Cancellation No. 92062086
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alcoholic beverages including soft drinks and fruit juices containing vitamins.”28 It is
not clear from the record the purpose of that amendment, nor during the oral hearing
could either party definitively differentiate fruit juices from fruit juices containing
vitamins. As discussed below, Plaintiff introduced numerous third-party
registrations where the same mark registered for nutraceuticals or nutritional
supplements and, inter alia, fruit juices. Because fruit juices encompass fruit juice
containing vitamins, we find that fruit juices are relevant in analyzing whether
Plaintiff’s products are similar to Defendant’s fruit juices containing vitamins. Cf. In
re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Defendant’s
broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s
narrowly identified ‘residential and commercial furniture.’”).
An “Energy drink” is
… any beverage that contains high levels of a stimulant
ingredient, usually caffeine, as well as sugar and often
supplements, such as vitamins or carnitine, and that is
promoted as a product capable of enhancing mental
alertness and physical performance.
Energy drinks are distinguished from sports drinks, which
are used to replace water and electrolytes during or after
physical activity, and from coffee and tea, which are
brewed, contain fewer ingredients, and may be
decaffeinated. Energy drinks also differ from soft drinks,
which either do not contain caffeine or contain relatively
small amounts of caffeine. Although some energy drinks
are considered beverages, others, namely those containing
food additives (e.g., taurine or other amino acids), may be
marketed as dietary supplements. Examples of energy

28 May 15, 2014 Office Action in Application Serial No. 86182052 (TSDR 3). References to the
TSDR database are to the downloadable .pdf format.
Opposition No. 91221928
Cancellation No. 92062086
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drinks include Red Bull, Monster, Rockstar, NOS, and
Amp.29
We consider energy drinks in the analysis of whether the goods are related if the
description of goods in the registration or the website display advertises that the
energy drink contains supplements or vitamins.
Finally, a “Smoothie” is defined as “a thick beverage of fruit pureed in a blender
with ice and milk, yogurt or juice.”30 We consider a smoothie as a fruit or yogurt
product and relevant in our analysis of the goods.
To prove that Defendant’s “non-alcoholic beverages, namely, soft drinks and fruit
juices containing vitamins” and “yogurt drinks, fruit based snack food” are related to
Plaintiff’s “nutraceuticals for use as a nutritional supplement and as a nutritional
supplement ingredient,” Plaintiff introduced numerous use-based, third-party
registrations listing goods identified in both the application and registrations at
issue.31 Third-party registrations based on use in commerce that individually cover a
number of different goods may have probative value to the extent that they serve to
suggest that the listed goods are of a type that may emanate from the same source.
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem.

29 Energy Drink, ENCYCLOPAEDIA BRITANNICA (britannica.com).
30 Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018)
31 We did not consider the marks registered under Section 44(e) or Section 66 of the
Trademark Act.
Opposition No. 91221928
Cancellation No. 92062086
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864 F.2d 149 (Fed. Cir. 1988). Representative registrations, with relevant portions
of the identifications, are listed below.32
1. Nutraceuticals and “non-alcoholic beverages, namely, soft drinks and
fruit juices containing vitamins.”

MARK REG. NO. GOODS
Design Mark 4140286 Nutritional supplements; nutritionally
fortified beverages; non-alcoholic beverages
containing fruit juices
MIRACLE FRUITS
OF THE WORLD
3299771 Nutritional supplements; nutritionally
fortified juice beverages; fortified fruit juice
TAHITIAN NONI 4172104 Nutritional supplements; fruit-based liquid
nutritionally fortified beverages
A SWEET WAY TO
PREVENT TOOTH
DECAY
3996880 Dietary beverage supplements; nutritionally
fortified beverages; fruit juices and energy
drinks containing nutritional supplements
LIFE’S DFA 3486595 Nutritional supplements; nutritionally
fortified beverages
KID KRITICS
APPROVED
4200891 Nutritional supplements in the form of
vitamins and nutritional energy bars for use
as a meal substitute; vitamin enriched water
C BOTANICALS 5009822 Dietary supplements; fruit drinks featuring
vitamin C
F15 5218499 Dietary and nutritional supplements; non-
alcoholic beverages, namely drinks
containing aloe vera gel
ALWAYS BE YOU 5093040 Liquid of powder nutritive supplements;
fruit-based food beverages containing
fortified nutrients for use as a healthy snack
HAWAIIAN OANA
TUMERIC
5086643 Dietary supplements containing turmeric
from Hawaii; fruit drinks containing
turmeric from Hawaii
M 5022676 Nutritional supplements in liquid form;
carbonated drinks enhanced with vitamins,
minerals and nutrients
MULTYDRINK 4855414 Dietary and nutritional supplements; fruit
juices containing nutritional supplements

32 39 TTABVUE 39 TTABVUE 108-1030. We did not consider registrations that did not
include Plaintiff’s nutraceutical type products or either of Defendant’s products. See e.g.,
39 TTABVUE 145, 150, 156, 209, 216, 231, 236, 241, 251, 264, 287, 291, 295, etc.
Opposition No. 91221928
Cancellation No. 92062086
- 22 -
MARK REG. NO. GOODS
USN 4933154 Dietary and nutritional supplements; fruit
juices containing nutritional supplements
PURPS 4735745 Dietary and nutritional supplements;
vitamin enhanced flavored water and
beverages
THE PREMIUM
SEAWEED BLEND
4092616 Dietary and nutritional supplements
containing seaweed; liquid nutritional
supplements; nutritionally fortified
beverages; fruit juices containing nutritional
supplements

Plaintiff also introduced third-party websites where nutraceuticals or nutritional
supplements are used with fruit juices. This evidence shows that consumers have the
opportunity to associate nutraceuticals or nutritional supplements and fruit juices or
fruit juices containing vitamins because they are used together in products to meet
nutritional needs. For example,
• UDO’S CHOICE WHOLESOME FAST FOOD is a nutritional supplement
which “can be added to juice, protein shakes, apple sauce, yogurt, sprinkled
on cereals, salads or other foods.”33
• JAMBA JUICE (jambajuice.com) advertises fruit smoothies bolstered with
antioxidants or extra protein;34
• SMOOTHIE KING (smoothieking.com) advertises smoothies with, inter
alia, vitamin, protein, probiotics, herbs and grains;35

33 40 TTABVUE 186.
34 40 TTABVUE 593.
35 40 TTABVUE 596.
Opposition No. 91221928
Cancellation No. 92062086
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• NATURE’S POWER NUTRACEUTICALS is a nutritional supplement
“perfect for many versatile applications, including ice cream, fruit juice, ice
tea, soup, yogurt, instant food,” etc.36
• NATURE’S POWER NUTRACEUTICALS also advertises fortified fruit
juice powdered mixes;37
• ORANGE JULIUS (orangejulius.com) advertises fruit smoothies with an
added “Nutrition Boosts” (i.e., nutritional supplements);38
• RED MANGO (redmangousa.com) advertises fruit smoothies with added
nutritional supplements;39 and
• JUST JUICE (justjuice.org) posted an article entitled “Juicing Extras: The
Best Supplements to Add to Superpower Your Juice Smoothies.”40
It is well established that the goods of the parties need not be similar or
competitive, or even offered through the same channels of trade, to support a holding
of likelihood of confusion. It is sufficient that the respective goods of the parties are
related in some manner or that the conditions and activities surrounding the
marketing of the goods 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 originate from the same source. See Kohler Co.

36 40 TTABVUE 660.
37 40 TTABVUE 651.
38 40 TTABVUE 590.
39 40 TTABVUE 602. See also KEVA JUICE (kevajuicesws.com) (40 TTABVUE 604)
40 40 TTABVUE 612.
Opposition No. 91221928
Cancellation No. 92062086
- 24 -
v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1109 (TTAB 2007); Hilson Research,
Inc. v. Society for Human Resource Mgmt., 27 USPQ2d 1423 (TTAB 1993); In re Int’l
Tel. & Tel. Corp., 197 USPQ 910, 911 (TTAB 1978). The issue, of course, is not
whether purchasers would confuse the goods, but rather whether there is a likelihood
of confusion as to the source of the goods. In re Cook Med. Tech. LLC, 105 USPQ2d
1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d
1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
Based on the foregoing, we find that “nutraceuticals for use as a nutritional
supplement and as a nutritional supplement ingredient” are related to “non-alcoholic
beverages, namely, soft drinks and fruit juices containing vitamins.”
2. Nutraceuticals and “yogurt drinks, fruit based snack food” 41
MARK REG. NO. GOODS
FUNFRESH FOODS 4352342 Nutritional supplements; yogurt;
SLIM SECRETS 4516420 Nutritional supplement shakes; yogurt; dried
fruit-based snacks
YOMIX 4436929 Dietary supplements; fruit-based snack food
yogurt;
ANKASCIN 4286630 Powdered nutritional supplement drink mix;
yogurt-based beverages;
VIGIIS 4283597 Powdered nutritional supplement drink mix;
yogurt-based beverages;
SKINNY SMOOTHIE 3886580 Nutraceuticals for use as dietary
supplements; yogurt based beverages;
WEIGHTWATCHERS 2971486 Dietary food supplements; yogurt;
THE PROTEIN
PEOPLE
2654777 Nutritional supplements; nonfat yogurt
L. CASEI
IMMUNITAS
3357591 Dairy-based liquid dietary supplements;
yogurt and yogurt based beverages

41 Yogurt is a broad term encompassing yogurt drinks. See Food Processing magazine
(foodprocessing.com), “Category Report: Yogurt in all its forms” (June 1, 2004) “Yogurt comes
in many forms – spoonable, drinkable, textured (whole fruit, etc.) and in a variety of sizes,”
and “A faster growing sub-category is drinkable yogurt.”). 40 TTABVUE 171.
Opposition No. 91221928
Cancellation No. 92062086
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MARK REG. NO. GOODS
LIFE’S DFA 3486595 Nutritional supplements; yogurt based
beverages; yogurt
SWEET-INFUSED
FRUITS
3807615 Nutraceuticals for use a dietary supplement;
frozen yogurt; candy fruit rolls
KID KRITICS
APPROVED
4200891 Nutritional supplements in the form of
vitamins and nutritional energy bars for use
as a meal substitute; yogurt
FRESH & EASY 4400455 Vitamin and mineral supplements; fruit
based snack food
365 EVERYDAY 4094216 Vitamins and supplements; nutritional drink
mix for use as a meal replacement; dietary
food supplement; fruit based snack foods;
yogurt
SCIENT 2952662 Nutritional supplements; yogurt; dried fruits
ALL YOU HAVE TO
DO IS EAT
2682741 Vitamin and mineral supplements; frozen
yogurt;
FOLLOW YOUR
HEART
1267585 Vitamin supplements; dried fruit; fruit based
salads
AFP 3118735 Nutritional supplements; fruit based snacks
SWEET-INFUSED
FRUITS
3807615 Nutraceuticals for use as a dietary
supplement; frozen yogurt; candy fruit rolls
ELAVIDA 5212034 Dietary and foods supplements; fruit-based
snack foods
CAN YOUR
CRAVINGS
5207982 Dietary supplemental drinks; dietary and
nutritional supplements used for weight loss;
fruit juices containing nutritional
supplements
MET-RX 5160104 Nutritional supplements; fruit-based snack
bars
ENBIOTIC 5188968 Nutritional supplements; yogurt; yogurt
drinks
USN 4933154 Dietary and nutritional supplements; fruit-
based meal replacement bars
RAW REV 4872633 Dietary and nutritional supplements; fruit-
based snack food
KIVA 5108487 Nutritional food additives; dietary food
supplements; dried fruit-based snacks; fruit-
based organic food snacks
SIMPLE TRUTH 4377139 Vitamins; dietary supplements; yogurt; dried
fruit

Opposition No. 91221928
Cancellation No. 92062086
- 26 -
Plaintiff also introduced evidence showing that nutraceuticals or nutritional
supplements are used with yogurt, yogurt related products, and fruit-based snacks
providing consumers the opportunity to associate nutraceuticals or nutritional
supplements and yogurt, yogurt related products or fruit-based snacks because they
are used to together in meeting nutritional needs. For example,
• Livestrong.com website posted an article on June 17, 2015 entitled “How to
Add Protein Powder to Yogurt.”42
Once thought of as a supplement for bodybuilders, protein
powder is now used by people from all walks of life to
enhance protein intake. … Protein powder and yogurt is a
combination that offers several possibilities.
• eHow.com posted an article entitled “How to Add Protein Powder to Yogurt.”43
If you’re tired of always taking your protein powder in a
shake, add it to your favorite yogurt to boost its protein
content – and while you’re at it, add some fruit, candy,
nuts, granola or toasted wheat germ to it for a delicious
snack or dessert that’s very healthy too.
• Nature’s Power Nutraceuticals (npnutra.com) advertises itself as a leader in
nutraceuticals and that its products may be mixed into yogurt and smoothies;44
and

42 40 TTABVUE 3. See also HealthyEating.sfgate.com, “Can You Take a Protein Supplement
With Yogurt?” (40 TTABVUE 703).
43 40 TTABVUE 13.
44 40 TTABVUE 660.
Opposition No. 91221928
Cancellation No. 92062086
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• BARLEAN’S OMEGA MAN MOCHA JAVA is a nutritional supplement that
“can be taken straight or mixed into beverages, oatmeal, ice cream or yogurt.”45
Based on the foregoing, we find that “nutraceuticals for use as a nutritional
supplement and as a nutritional supplement ingredient” are related to “yogurt
drinks, fruit based snack food.”
C. Established, likely-to-continue channels of trade and consumers to whom sales
are made.

1. “Nutraceuticals for use as a nutritional supplement and as a nutritional
supplement ingredient” and “non-alcoholic beverages, namely, soft drinks
and fruit juices containing vitamins.”

The evidence discussed above that Plaintiff introduced to show how people use
nutritional supplements with fruit juices illustrates how nutritional supplements and
fruit juice products are used by the same consumers. In addition, Plaintiff introduced
evidence where third-parties provide instructions to consumers to mix nutritional
supplements in juices. For example,
• Udo’s Choice Wholesome Fast Food;46
• Solaray Lecithin Granules;47 and
• Kal Bone Meal Powder.48

45 40 TTABVUE 195. See also 40 TTABVUE 3, 13, 25, 87, 89, 133, 186, 190, 192, 198, 202,
205, 207, 209, 211, 214, 216, 218, 221, 223, 225, 228, 230, 232, 235, 237, 240, 242, 245, 247,
249, 252, 255, 258, 261, and 383.
46 40 TTABVUE 186.
47 40 TTABVUE 240.
48 40 TTABVUE 245. See also 40 TTABVUE 18, 190, 192, 198, 202, 205, 211, 214, 221, 223,
228, 232, 235, 247, 265, and 383.
Opposition No. 91221928
Cancellation No. 92062086
- 28 -
Plaintiff also introduced evidence showing that nutraceuticals or nutritional
supplements and fruit juices are offered for sale in the same channels of trade,
including the internet and brick and mortar stores. For example,
• GNC.com advertises the sale of nutritional supplements and fruit juices;49
• NOVA SCOTIA ORGANICS (novascotiaorganics.com) advertises the sale of
berry smoothie mix containing nutritional supplements;50
• Tao of Herbs (taoofherbs.com) advertises the sale of nutritional
supplements and fruit juices;51
• Now Foods (vitacart.com) advertises the sale of Mangoni Concentrate,
SuperFruit Antioxidant Cocktail and nutritional supplements;52 and
• VitaSprings.com .com advertises the sale of Mangoni Concentrate,
SuperFruit Antioxidant Cocktail and nutritional supplements.53
2. “Nutraceuticals for use as a nutritional supplement and as a nutritional
supplement ingredient” and “yogurt drinks, fruit based snack food.”

The evidence noted above that Plaintiff introduced to show how people use
nutritional supplements with yogurt illustrates how nutritional supplements and
yogurt products are used by the same consumers.54 In addition, Plaintiff introduced
the following evidence:

49 39 TTABVUE 538, 552, 562.
50 39 TTABVUE 590.
51 39 TTABVUE 1074 and 1078.
52 39 TTABVUE 1101.
53 39 TTABVUE 1148.
54 40 TTABVUE 3, 10 (“I’m thinking of trying casein ½ cup greek yogurt and maybe some
crunchy almond butter.”), 13, 25, 87, 89, 133, 186, 190, 192, 195, 198, 202, 205, 207, 209, 211,
Opposition No. 91221928
Cancellation No. 92062086
- 29 -
• An article posted on the PowerHungy.com website “Double Protein Greek
Yogurt” (January 24, 2013) is by a protein powder user who recommends
mixing protein powder into Greek yogurt showing how consumers may use
yogurt with nutritional supplements;55
• GNC (gnc.com) advertises the sale of fruit based snacks, nutritional
supplements and yogurt products;56
• Nutrition Express advertises the sale of fruit based snacks and nutritional
supplements;57
• Swanson (swanson.com) advertises the sale of nutritional supplements, freeze-
dried yogurt starter, fruit yogurt smoothie, yogurt-covered fruit berries, fruit
snacks, and fruit juice;58 and
• NOVA SCOTIA ORGANICS (novascotiaorganics.com) advertises the sale of
nutritional supplements and fruit based snacks;59
We find that Plaintiff’s “nutraceuticals for use as a nutritional supplement and as
a nutritional supplement ingredient” and Defendant’s “non-alcoholic beverages,
namely, soft drinks and fruit juices containing vitamins” and “yogurt drinks, fruit

214, 216, 218, 221, 223, 225, 228, 230, 232, 235, 237, 240, 242, 245, 247, 249, 252, 255, 258,
261, 383,
55 40 TTABVUE 32.
56 40 TTABVUE 415 and 505.
57 40 TTABVUE 432.
58 40 TTABVUE 440, 511, and 514.
59 39 TTABVUE 588 and 592.
Opposition No. 91221928
Cancellation No. 92062086
- 30 -
based snack food” are offered for sale in some of the same channels of trade to some
of the same classes of consumer.
D. Analyzing the factors.
Because the marks are similar, the goods are related and are offered in some of
the same channels of trade to some of the same classes of consumers, we find that
Defendant’s mark VITAMIN BLUE for “non-alcoholic beverages, namely, soft drinks
and fruit juices containing vitamins” and “yogurt drinks, fruit based snack food” is
likely to cause confusion with Plaintiff’s mark VITABLUE for “nutraceuticals for use
as a nutritional supplement and as a nutritional supplement ingredient.”
Decision: The opposition is sustained and the petition for cancellation is granted.