VITA SOURCE

Trademark Trial and Appeal Board

May 18, 1998

No. 74662708 (T.T.A.B. May. 18, 1998)

Hearing: August 19, 1997
Paper No. 16
CEW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MAY 18, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re VITA SOURCE
___________
Serial No. 74/662,708
___________
L. S. Van Landingham, Jr., Esq. for applicant.
Michael Hamilton, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
____________
Before Cissel, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
VITA SOURCE has filed a trademark application to
register the mark LIGHTNING 828 for “herbal and botanical
dietary supplements, and dietary supplements containing
extracts, concentrates, metabolites and constituents of
herbs and botanicals.”1

1 Serial No. 74/662,708, in International Class 5, filed April 18, 1995,
based on an allegation of a bona fide intention to use the mark in
commerce.
Serial No. 74/662,708
2
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the marks GREEN LIGHTNING2 and LIQUID LIGHTNING,3
previously registered by the same party for, respectively, a
powdered dietary supplement and a liquid dietary supplement,
that, if used on or in connection with applicant’s goods, it
would be likely to cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs and an oral hearing was
held. We affirm the refusal to register.
In any analysis of likelihood of confusion, two key
considerations are the similarities between the marks and
the similarities between the goods. Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Turning first to the goods, we find that the goods of
the parties are very similar, if not identical, as the goods
of both applicant and the registrant are dietary
supplements. While there is no evidence in the record in
this regard, our conclusion that the goods are identical or

2 Registration No. 1,706,211 issued August 11, 1992, to Natural
Organics, Inc., in International Class 5. The registration includes a
disclaimer of GREEN apart from the mark as a whole.
3 Registration No. 1,776,201 issued June 15, 1993, to Natural Organics,
Inc., in International Class 5. The registration includes a disclaimer
of LIQUID apart from the mark as a whole.
Serial No. 74/662,708
3
very similar would remain the same even if the record
established that the parties’ dietary supplements are in
different forms or are made of different ingredients.
Additionally, neither the application nor the cited
registrations contain limitations as to the identifications
of goods. Rather, the identifications of goods are broadly
worded. We must presume that the goods of applicant and
registrant are sold in all of the normal channels of trade
to all of the normal purchasers for goods of the type
identified. See Canadian Imperial Bank v. Wells Fargo, 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). That is, we must
presume that the goods of applicant and registrant are sold
through the same channels of trade to the same classes of
purchasers.
Turning to the marks, we note the well-established
principle that, while the marks are compared in their
entireties, in articulating reasons for reaching a
conclusion on the issue of likelihood 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.” In re
National Data Corp., 732 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). Considering, first, registrant’s marks, we find
that LIGHTNING is the dominant portion of both marks, GREEN
Serial No. 74/662,708
4
LIGHTNING and LIQUID LIGHTNING. Particularly in view of the
disclaimers of, respectively, GREEN and LIQUID, it is likely
that GREEN would be perceived as merely descriptive of the
color of the identified dietary supplement, and that LIQUID
would be perceived as merely descriptive of the form of the
identified dietary supplement. There is no evidence in this
record that suggests that LIGHTNING has any significance
with respect to dietary supplements and, thus, it is an
arbitrary term in connection with these products.4
Similarly, we agree with the Examining Attorney that
LIGHTNING is the dominant portion of applicant’s mark,
LIGHTNING 828. Applicant contends, on the other hand, that
828 is the dominant portion of the mark in relation to the
identified goods as it is intended to mean “eight o’clock to
eight o’clock” and is suggestive of the duration of the
product’s efficacy. Applicant alleges, further, that it
owns a family of 828 marks in connection with dietary
supplements and that, thus, 828 is the dominant portion of
its applied-for mark.5 Even if we were to assume that
applicant’s allegations regarding the significance of 828
and its ownership of a family of 828 marks are true, our

4 Even if we were to determine that LIGHTNING is somewhat suggestive of
the efficacy of the identified product, we would still find it to be the
dominant portion of the mark.
5 Applicant has not established that it has a family of 828 marks and we
agree with the Examining Attorney that such a line of reasoning is not
relevant to our consideration herein. See, Baroid Drilling Fluids, Inc.
v. Sun Drilling Products, 24 USPQ2d 1048 (TTAB 1992).
Serial No. 74/662,708
5
conclusion that LIGHTNING is the dominant portion of
applicant’s mark would remain the same. As we discussed in
relation to registrant’s marks, LIGHTNING is an arbitrary
term in connection with the goods identified herein. Since
828 follows the word LIGHTNING, it is likely to be perceived
by consumers as either indicating one of several numeric
designations signifying different types of LIGHTNING dietary
supplements or indicating, as applicant contends, the
duration of the efficacy of the LIGHTNING dietary
supplements.
Thus, we conclude that the dominant portions of the
parties’ marks are identical. Generally, while we must look
at the marks in their entireties, if the dominant portions
of both parties’ marks are the same, then confusion may be
likely notwithstanding peripheral differences, especially
where the respective goods are identical or very similar.
Two exceptions to this rule are where the common portion is
not likely to be perceived as distinguishing source due to
its mere descriptiveness or the commonness of its use, and
where the marks in their entireties convey significantly
different commercial impressions. In re Denise, 225 USPQ
624 (TTAB 1985) (PERRY’S PIZZA held confusingly similar to
PERRY’S). We find that neither exception applies in this
case. Further, viewing the marks in their entireties, we

Serial No. 74/662,708
6
believe that consumers are likely to perceive LIGHTNING 828
as part of a line of dietary supplements, i.e., a twelve-
hour or twenty-four-hour supplement, that is related to the
registrant’s existing GREEN LIGHTNING and LIQUID LIGHTNING
supplements, each serving a different dietary purpose but
emanating from the same source. Thus, we find that the
overall commercial impressions of the parties’ marks are
significantly similar.
We are not convinced otherwise by applicant’s
contention that LIGHTNING is a “common” mark in view of
third-party registrations for marks incorporating the term
LIGHTNING. In support of its argument, applicant listed in
its response two third-party registrations,6 which the
Examining Attorney then made of record to show, and we
agree, that the goods identified in those registrations are
entirely unrelated to the goods in this case and, thus,
those registrations are of little persuasive value.
Applicant then submitted, with its brief, a print-out of a
summary of computerized search results which identified only
the marks. This submission is wholly inadequate and, in
this case, untimely.7 Further, as it is impossible to

6 Registration No. 1,427,647 for the mark LIGHTNING pertains to pet
sprays and Registration No. 1,724,925 for the mark GREEN LIGHTNING
pertains to toilet bowl cleaning preparations.
7 In order to make registrations of record, soft copies of the
registrations themselves, or the electronic equivalent thereof, i.e.,
printouts of the registrations taken from the electronic records of the
Patent and Trademark Office’s (PTO) own data base, must be submitted.
Serial No. 74/662,708
7
determine the relevance of those registrations to the case
before us, no conclusion regarding the issue of likelihood
of confusion between the applicant’s mark and each of the
cited registrations, as applied to the respective goods, can
be drawn from the co-existence on the register of the third-
party registrations. See, In re National Novice Hockey
League, Inc., 222 USPQ 638, 642 (TTAB 1984). As stated in
AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973), “little weight is to be given
such registrations in evaluating whether there is likelihood
of confusion. The existence of these registrations is not
evidence of what happens in the market place or that
customers are familiar with them nor should the existence on
the register of confusingly similar marks aid an applicant
to register another likely to cause confusion, mistake or to
deceive.”
Finally, we are not persuaded by applicant’s contention
that its goods are purchased by sophisticated consumers.
There is absolutely no evidence in the record regarding the
purchasers of dietary supplements or the degree of care
involved in such purchases. However, it would appear that
such items are relatively low cost items purchased by the

See, Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230 (TTAB 1992). Further,
applicant did not comply with the established rule that the evidentiary
record in an application must be complete prior to the filing of the
notice of appeal. See 37 CFR 2.142(d); In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994).
Serial No. 74/662,708
8
general consumer. Moreover, even if we were to conclude
that the goods of the parties are purchased by knowledgeable
consumers after careful consideration, we note that even
discerning purchasers are not immune from confusion when the
marks are as similar as these marks and the goods with which
they are used are the same. See, In re General Electric
Company, 180 USPQ 542 (TTAB 1973).
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, LIGHTNING 828, and registrant’s marks, GREEN LIGHTNING
and LIQUID LIGHTNING, their contemporaneous use on the same
or very similar goods involved in this case is likely to
cause confusion as to the source or sponsorship of such
goods.
While we do not have any doubt regarding our decision
that a likelihood of confusion exists herein, we note the
well established principle that one who adopts a mark
similar to the mark of another for the same or closely
related goods or services does so at his own peril, and any
doubt as to likelihood of confusion must be resolved against
the newcomer and in favor of the prior user or registrant.
W.R. Grace & Co. v. Herbert J. Meyer Industries, Inc., 190
USPQ 308 (TTAB 1976); and In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 463, 6 USPQ2d 1025 (Fed Cir. 1988).

Serial No. 74/662,708
9
Decision: The refusal under Section 2(d) of the Act is
affirmed.
R. F. Cissel
G. D. Hohein
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board