Vega

Trademark Trial and Appeal Board

Jul 16, 2009

No. 77279955 (T.T.A.B. Jul. 16, 2009)

Mailed: July 16, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Vega
________

Serial No. 77279955
_______

Liliana Pineyro Vega, pro sé.1

Leigh A. Lowry, Trademark Examining Attorney, Law Office
115 (Thomas V. Vlcek, Managing Attorney).
_______

Before Cataldo, Taylor and Bergsman, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Liliana Pineyro Vega has filed an application to
register on the Principal Register the mark shown below

1 Andrew D. Glasgow of Atlas Advocate International Law Firm,
P.C. prosecuted the application on applicant’s behalf. However
applicant, herself, filed the notice of appeal and appeal brief.
THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Ser No. 77279955
2
for “natural food supplements” in International Class 5.2
The words “Health,” “Quality” and “Technology” have been
disclaimed.
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark is likely to be confused with the mark in
U.S. Registration No. 0932491, NATURADE (in typed format),
for “medicinal preparations; namely chlorophyll
compositions, vitamins and vitamin formulations, minerals
and mineral formulations, nutritional supplements, amino
acid tablets; cold aids; energy tonics; laxatives;
digestive enzymes; constipation aids; expectorants; and
diuretics” in International Class 5.3
When the refusal was made final, applicant appealed.
Both applicant and the examining attorney filed briefs. We
affirm the refusal to register.
Before we begin our likelihood of confusion analysis,
we must discuss an evidentiary matter. The examining
attorney has objected to the submission by applicant of
“information”4 regarding third-party usage of the mark

2 Serial No. 77279955, filed September 14, 2007, and
alleging a bona fide intention to use the mark in commerce.

3 Issued April 18, 1972; second renewal June 7, 2002.

4 The submission consisted of the URL address for a purported
third-party use of the mark “NATURE’S AIDE” for supplements and
Ser No. 77279955
3
“NATURE’S AIDE” for the first time in her brief. Inasmuch
as “[t]he record in the application should be complete
prior to the filing of an appeal,” we find the submission
untimely. 37 C.F.R. § 2.142(d). We add that even if the
submission had been timely, it would be of little probative
value because applicant did not submit the actual web
pages. Accordingly, the examining attorney’s objection is
sustained and this new evidence, and related arguments,
have not been considered in this decision.5
Turning now to the merits of the appeal, 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.,

vitamins, as well as an explanation that the mark is advertised
as a registered trademark of N.M.N. Vitamins, Inc., a Connecticut
corporation.

5 Also, consideration of this evidence and argument would not
have altered our decision herein. Applicant argues that although
it did not locate the NATURE’S AIDE trademark in the Trademark
Electronic Search System, if it is indeed a registered trademark,
then it was allowed to register despite being identical in sound,
connotation and commercial impression to the cited mark. Thus,
applicant contends, “it would be fair to allow Applicant’s Mark
to register.” Applicant’s brief p. 8. Although applicant’s
argument is merely hypothetical, we nonetheless point out that
even if the Office had registered such a similar registration,
the Board is not bound by such registration as each case must be
determined on its own merits. In re Nett Designs Inc., 235 F.3d
1339, 57 USPQ 1564, 1566 (Fed. Cir. 2001).

Ser No. 77279955
4
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
any likelihood of confusion analysis, 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). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We turn first to a consideration of the goods. Since
the examining attorney focused her discussion on
nutritional supplements in the cited registration, we will
do the same. It is well settled that the question of
likelihood of confusion must be determined based on an
analysis of the goods recited in applicant’s application
vis-à-vis the goods recited in the registration. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Further, it is a general rule that applicant’s goods and
registrant’s goods do not have to be identical or directly
competitive to support a finding that there is a likelihood
of confusion. It is sufficient if the respective products
are related in some manner and/or that the conditions
surrounding their marketing are such that they would be
Ser No. 77279955
5
encountered by the same persons under circumstances that
could, because of the similarity of the marks used in
connection therewith, give rise to the mistaken belief that
they emanate from or are associated with a single source.
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993); In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978).
The examining attorney argues that applicant’s
“natural food supplements” are closely related to
registrant’s “nutritional supplements,” both being dietary
health supplements. The examining attorney attached to her
brief definitions of the terms “supplement,” and “dietary
supplement” from Merriam Webster Online, of which we take
judicial notice.6 “Supplement” is defined in pertinent part
as “b: DIETARY SUPPLEMENT” and “dietary supplement” is defined
as “a product taken orally that contains one or more
ingredients (as vitamins or amino acids) that are intended
to supplement one’s diet and are not considered food.”
The examining attorney additionally submitted
definitions of “diet supplement” from online sources which

6 From the website www.merriam-webster.com and retrieved on May
2, 2009. The Board may take judicial notice of dictionary
definitions, including online dictionaries which exist in printed
format. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789 (TTAB
2002). See also University of Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser No. 77279955
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discuss natural food and/or nutritional supplements. For
example, a definition taken from the website Wikipedia,
www.wikipedia.org/Nutritional_supplement - retrieved
July 16, 2008, states that “[a] dietary supplement, also
known as food supplement or nutritional supplement, is a
preparation intended to supply nutrients, such as vitamins,
minerals, fatty acids or amino acids, that are missing or
are not consumed in sufficient quantity in a person’s
diet.” An article entitled Nutritional Supplements from
the Holistic Pediatric Association website, retrieved from
a search of the Google search engine for the terms
“nutritional supplements natural food supplements” on July
16, 2008, indicates that nutritional supplements come in
the form of synthetic and “natural food supplements.”7
The examining attorney also made of record copies of
eight use-based, third-party registrations to show that

7 The examining attorney also submitted the definition of
“nutritional supplement” from the website Answerbag
(www.answerbag.com – retrieved July 16, 2008 retrieved as a
result of the query, “What are nutritional supplements?.” The
definition reads in part:
Nutritional supplements include vitamins, minerals,
herbs, meal supplements, sports nutrition products,
natural food supplements and other related products
used to boost the nutritional content of the diet.

The article, however, indicates that: “Answerbag cannot
guarantee the accuracy of answers submitted by members, and we
recommend that you use common sense when following any advice
found here.” Accordingly, we have considered the definition as
merely corroborating the other definitions of record.

Ser No. 77279955
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various trademark owners have adopted a single mark for
goods of the kind that are identified in both applicant’s
application and the cited registration, namely natural food
supplements and nutritional supplements. These third-party
registrations may serve to suggest that the types of goods
involved herein are related. See In re Mucky Duck Mustard
Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (although third-
party registrations are “not evidence that the marks shown
therein are in use on a commercial scale or that the public
is familiar with them, [they] may nonetheless have some
probative value to the extent that they may serve to
suggest that such goods or services are of a type which may
emanate from a single source”). See also In re Albert
Trostel & Sons Co., 29 USPQ2d at 1785.
These registrations are as follows:
Registration No. 2573983 for the mark THE RIGHT FAT
DIET for, inter alia, food supplements for humans,
namely, nutritional supplements and natural food
supplements;

Registration No. 2257021 for the mark MASTER NUTRIENT
FORMULA for, inter alia, food supplements for humans,
namely, nutritional supplements and natural food
supplements;

Registration No. 2617578 for the mark HOLLYWOOD
METAMIRACLE for, inter alia, nutritional supplements
and natural food supplements;

Registration No. 2860665 for the mark NP NATURAL POWER
and design for, inter alia, nutritional supplements and
natural food supplements;
Ser No. 77279955
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Registration No. 3335728 for the mark VITALGLO for,
inter alia, nutritional supplements for humans, namely,
nutritional supplements and natural food supplements;

Registration No. 3411062 for the mark D8-INSINOL BLEND
for, inter alia, nutritional supplements for humans,
namely, nutritional supplements and natural food
supplements;

Registration No. 2824002, for the mark JUDY SINGER,
for, inter alia, nutritional supplements for humans,
namely, nutritional supplements and natural food
supplements; and

Registration No. 3451186, for the mark PLUSEPA for,
inter alia, food supplements, namely whole natural food
supplements and nutritional supplements, namely,
nutritional supplements containing extracts of plants
and herbs.8

We find the definitions and third-party registrations
are sufficient to demonstrate that applicant’s and
registrant’s goods are closely related, both being dietary
supplements intended for the same purpose, i.e., to
supplement to the user’s diet.
Applicant argues that her products are “very
different” from those of the registrant. Registrant’s
goods being weight gain/loss powders, protein powders,
sports nutrition products, herbal cough and cold products,
and other similar products, i.e., nutritional supplements,

8 The examining attorney also submitted seven third-party
registrations (Registration Nos. 3168270, 3393223, 3306929,
3445275, 3407254, 3458118 and 3469767) for marks that include
both food supplements (which, as so identified, is broad enough
to encompass natural food supplements) and nutritional
supplements.

Ser No. 77279955
9
while applicant’s products are natural food supplements.
Citing to a URL address for the website Wikipedia9,
applicant contends:
In other words, NATURADE products are nutritional
supplements, while ‘NATURE-AID’ products are
natural food supplements. While nutritional
supplements deal with nutrients, natural foods
are minimally processed and, based on this
distinction, there is no likelihood of confusion
between the products.

Applicant’s brief p. 7. This argument is not well taken.
First, applicant did not provide a copy of the definition
taken from the Wikipedia website and applicant’s
unsupported contention has no evidentiary value. Moreover,
even if the definition was of record and it is true that
natural foods are minimally processed, such a fact is not
persuasive on the issue of likelihood of confusion in this
case. As stated, our determination of the relatedness of
the applicant’s and registrant’s goods is based on a
comparison of the goods as identified in applicant’s
involved application and the cited registration, and not on
what any evidence (or argument) may reveal as to the actual
nature of the respective goods. Canadian Imperial Bank v.
Wells Fargo Bank, 1 USPQ2d at 1815; and Octocom Systems,

9 The referenced website is http://en.wikipedia.org/. This is
the website from which applicant presumably retrieved a
definition of the term natural foods and/or nutritional
supplements.

Ser No. 77279955
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Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 942
(Fed. Cir. 1990). In this case, applicant’s goods are
identified as natural food supplements, not natural foods,
and registrant’s goods are identified as nutritional
supplements, not weight gain/loss powders, protein powders,
sports nutrition products, herbal cough and cold products,
and other similar products. As indicated previously, food
supplements are not food. In addition, applicant may not
restrict the scope of registrant’s goods by extrinsic
evidence. In re Bercut-Vandervoort & Co., 229 USPQ 763,
764 (TTAB 1986).
Furthermore, in the absence of any limitations to the
goods recited in applicant’s application and the cited
registration, we must presume that both applicant’s and
registrant’s goods will be offered in the same channels of
trade, e.g., drug stores, specialty nutrition stores and
grocery stores, and to the same classes of purchasers
seeking such supplements. See In re Elbaum, 211 USPQ 639,
640 (TTAB 1981). In view of the above, the du Pont factors
of the relatedness of the goods, channels of trade and
classes of purchasers strongly favor a finding of
likelihood of confusion.
We now consider applicant’s mark NATURE-AID HEALTH,
QUALITY, TECHNOLOGY and design with the registered mark
Ser No. 77279955
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NATURADE. In determining the similarity or dissimilarity
of the marks, we must consider them in their entireties in
terms of sound, appearance, meaning and commercial
impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
The test 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 their entireties that
confusion as to the source of the goods 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).
The examining attorney argues that “applicant’s mark
is identical in dominant portion and highly similar in
appearance, meaning, connotation and commercial impression
to the registered mark.” Examining attorney’s brief
(unnumbered) p. 2. Opposer, on the other hand, maintains
that the “Trademark Examining Attorney never analyzed the
design feature of Applicant’s mark. Instead, [the]
Trademark Examining Attorney insisted on giving greater
weight to the dominant word feature in determining
likelihood of confusion.” Applicant’s brief p. 6.
Ser No. 77279955
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Although we must compare the marks in their
entireties, 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. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (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.). For
instance, “that a particular feature is descriptive or
generic with respect to the involved goods or services is
one commonly accepted rationale for giving less weight to a
portion of a mark….” Id, 224 USPQ at 751.
We find that the dominant and distinguishing portion
of applicant’s mark NATURE-AID HEALTH, QUALITY, TECHNOLOGY
and design is the word “NATURE-AID.” The words HEALTH,
QUALITY AND TECHNOLOGY, as evidenced by the disclaimer and
the definitions submitted by the examining attorney with
her first Office action, are merely descriptive of
qualities and/or features of applicant’s goods. In
particular, these terms describe that applicant’s goods are
“good for people” (health), are of the “highest or finest
Ser No. 77279955
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standard” (quality), and “appl[y] technical knowledge.”10
As such, these terms would not be looked to as source-
identifying elements. Further, the font style of the words
in applicant’s mark is not a distinguishing feature because
registrant’s mark is registered in typed format and, as
such, registrant’s rights therein encompass the word
NATURADE and are not limited to the depiction thereof in
any special form. See Phillips Petroleum Co. v. C. J.
Webb, Inc. 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971).
Instead, when a registration for a word mark is in typed
form, “then the Board must consider all reasonable manners
in which … [the word] could be depicted.” INB National
Bank v. Metrohost Inc., 22 USPQ 1585, 1588 (TTAB 1992).
Therefore, registrant’s mark must be regarded as including
the display thereof in the same lettering style used by
applicant, since such would be a reasonable manner of
display and there is no showing by applicant that the
lettering format is unusual or otherwise unique.
Nor do we find the design sufficient to distinguish
applicant’s mark from the registrant’s mark. It is settled
that with a composite mark comprising a design and words,

10 The definitions (in pertinent part) were taken from the msn
encarta dictionary (http://encarta.msn.com/encnet/features/
Dictionary) and retrieved on December 19, 2007.

Ser No. 77279955
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the word portion of the mark is usually the one most likely
to indicate the origin of the goods to which it is affixed.
CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed.
Cir. 1983); and In re Dakin’s Miniatures, Inc., 59 USPQ2d
1593 (TTAB 2001) (“words are normally accorded greater
weight because they would be used by purchasers to request
the goods”). The concentric circles, even though displayed
in the colors yellow and grey, have minimal visual impact,
merely serving to frame the wording NATURE-AIDE and the
leaf design. Similarly, the green banner, located at the
bottom of the circles and upon which the words HEALTH,
QUALITY, TECHNOLOGY are displayed, simply acts as a carrier
for those words and, while noticeable, has little visual
impact. We find this especially so given the larger font
size of the wording NATURE-AID, as compared to the font
size in which the wording HEALTH, QUALITY, TECHNOLOGY are
displayed, and the placement of the banner. Further, the
green-colored leaf design simply enhances the meaning of
the wording NATURE-AIDE. In other words, we find that the
dominant part of applicant’s mark, and the part of
applicant’s mark that consumers are likely to recall, is
the name “Nature-aide.”
The dominant portion of applicant’s mark is
substantially similar to the cited mark. This is so
Ser No. 77279955
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because, as the examining attorney points out, NATURE-AIDE
and NATURADE are phonetic equivalents, which will be
pronounced identically. See RE/MAX of America, Inc. v.
Realty Mart, Inc., 207 USPQ 960, 964 (TTAB 1980)
(similarity in sound alone may be sufficient to support a
finding of likelihood of confusion). See also, for
example, Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469
(TTAB 1975); and In re Cresco Mfg. Co., 138 USPQ 401 (TTAB
1963). We find that neither the fanciful spellings of both
marks, nor the addition of the hyphen in applicant’s mark
or the deletion of the space between the terms “natur[e]”
and “ade” in applicant’s mark, are sufficient to
distinguish the marks as to appearance. In addition, due
to the similarity in sound and appearance of the shared
term NATURADE/NATURE-AID, we find the marks similar in
meaning and commercial impression. For this reason,
purchasers of nutritional supplements who are familiar with
registrant’s NATURADE mark may view applicant’s NATURE-AIDE
HEALTH, QUALITY, TECHNOLOGY and design as a variant
thereof, and that such mark identifies a line of natural
food supplements sponsored by or approved by registrant.
Applicant, distinguishing In re Dixie Restaurants
Inc., 105 F.3d 1405 (Fed. Cir. 1997), contends that the
design portion of her mark was not accorded the appropriate
Ser No. 77279955
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weight because her design is more “complex” than a
geometric carrier. As the examining attorney aptly
explains, “[a]lthough Dixie Restaurants dealt with a mark
featuring a diamond design, it in no way limits the
analysis of giving less weight to the design portion to
only those marks with carriers as designs as opposed to
those marks that feature more “complex” designs.” Brief
(unnumbered p. 4). Indeed, it is settled that the word
portion of a mark carries more weight than the design
portion and is more likely to be impressed upon a
purchaser’s memory and to be utilized in calling for and
identifying the goods and services, even when such mark
includes a more “complex,” non-carrier design. See e.g.,
Amoco Oil Co. v. Amerco, 192 USPQ 729 (TTAB 1976) (AMERCO
and wheel design found likely to cause confusion with
AMOCO). Notably applicant did not challenge this
underlying legal proposition.
In sum, while differences admittedly exist between the
marks when viewed on the basis of a side-by side
comparison, for the reasons discussed above, we find that,
when viewed as a whole, applicant’s mark and the cited
registered mark are substantially similar in sound,
appearance and connotation and convey the same overall
commercial impression. See Palm Bay Imports Inc. v. Veuve
Ser No. 77279955
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Clicuot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005). Accordingly, the factor of similarity of the marks
favors a finding of likelihood of confusion.
Last, we find unavailing applicant’s claim that a
likelihood of confusion does not exist between its mark and
the cited mark, because “NATURE-AID products are
manufactured in Mexico, while NATURADE products originate
in California, U.S. … [and, t]hus, it is clear that
NATURE-AID products target customers who look for Mexican
natural foods, while NATURADE products target customers who
look for domestic nutritional supplements.” Applicant’s
brief p. 7. It is common knowledge that many products
available in the United States marketplace are manufactured
outside of the United States, and there is nothing in the
record to suggest that the place of manufacture of either
applicant’s or registrant’s supplements influences
consumers’ purchasing decisions.
After careful consideration of the arguments and the
evidence of record, we conclude that purchasers familiar
with registrant’s nutritional supplements sold under the
NATURADE mark would be likely to believe, upon encountering
applicant’s mark NATURE-AID HEALTH, QUALITY, TECHNOLOGY and
design for natural food supplements, that such goods
Ser No. 77279955
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emanate from or are sponsored by or affiliated with the
same source.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.