Wellness Unmasked, Inc.

Trademark Trial and Appeal Board

Nov 2, 2017

No. 86863331 (T.T.A.B. Nov. 2, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 2, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Wellness Unmasked, Inc.
_____

Serial No. 86863331
_____

Erik M. Pelton of Erik M. Pelton & Associates PLLC for
Wellness Unmasked, Inc.

Cori Stedman,1 Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Zervas, Wellington, and Kuczma,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Wellness Unmasked Inc. (“Applicant”) seeks registration on the Principal Register
of the mark BODY CODE SYSTEM, in standard character format, for “audio
and video downloads providing information, coaching, and training in the fields of
emotional wellness, personal lifestyle and relationships, emotional and mental

1 Ms. Stedman was assigned responsibility for the involved application, on behalf of the
Office, after the appeal was filed.
Serial No. 86863331
- 2 -

health, energy healing” in International Class 9.2 The words BODY and SYSTEM
have been disclaimed.
The Trademark Examining Attorney has refused registration of Applicant’s mark
on the ground of a likelihood of confusion under Section 2(d) of the Trademark Act,
15 U.S.C. §1052(d), in view of the registered mark YOUR BODY CODE in
standard character format, for “Nutrition counseling and dietician services”
in International Class 42.3
When the refusal was made final, Applicant filed two requests for reconsideration
which were denied by the Examining Attorney.4 Applicant then filed a timely appeal
which has been fully briefed.
Likelihood of Confusion
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., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.

2 Application Serial No. 86863331 was filed on December 31, 2015, based on an allegation of
first use of the mark in commerce in 2009, under Trademark Act Section 1(a), 15 U.S.C.
§ 1051(a).
3 Registration No. 2547298 issued on March 12, 2002 and has been renewed.
4 By way of the requests for reconsideration, filed on January 31 and February 1, 2017,
Applicant, inter alia, amended its identification of goods, submitted a disclaimer of the term
BODY, and filed a consent agreement between Applicant and the owner of another
registration for the mark BODYCODE SYSTEM (Reg. No. 3405213) which was also asserted
as a basis for the likelihood of confusion refusal. In an Office action issued on February 14,
2017, the Examining Attorney accepted the amendment to the identification and withdrew
both the refusal based on Reg. No. 3405213 and the disclaimer requirement, but maintained
the refusal that is on appeal.
Serial No. 86863331
- 3 -

2003). In any likelihood of confusion analysis, however, two key considerations are
the similarities between the marks and the similarities between the goods 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).
Similarity of the Marks
We first consider the du Pont likelihood of confusion factor involving “the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting 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 (Fed. Cir. 2012)
(citation omitted). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re C.H.
Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015).
Here, through the inclusion of BODY CODE in both marks, Applicant’s mark
BODY CODE SYSTEM is visually and aurally very similar to Registrant’s mark
YOUR BODY CODE.
Serial No. 86863331
- 4 -

With regard to the meanings of the marks, YOUR BODY CODE, in the context of
nutritional and dietetic counselling services, suggests a customized set of “principles
or rules” for an individual’s nutritional needs or diet.5 This meaning is corroborated
by Registrant’s website stating, “Your Body Code is a personalized nutrition, fitness
and wellness program that is tailor made for the client to give your individual code
to burning fat, gaining muscle and re-gaining back your heath...”6 Applicant’s mark,
BODY CODE SYSTEM, has a similar meaning. That is, in the context of Applicant’s
goods, the mark suggests that there is a particular set of rules (or “code”) to the
human body and this may be discovered through Applicant’s audio and video
downloads. Indeed, Applicant’s own materials show this is the intended commercial
impression and connotation (“You’re about to discover the most effective solutions for
unlocking better health, wealth and relationships! … The secrets to creating healthy
relationships that last.”).7 The disclaimed term SYSTEM merely suggests that
Applicant’s audio and video downloads involve a “systematic” or interconnected
approach to instruction, e.g., “steps 1, 2, 3 ... .”8

5 We take notice that the term “code” has several defined meanings, including: “any set of
principles or rules of conduct.” Webster’s New World College Dictionary, 4th Edition.
Copyright © 2010 by Houghton Mifflin Harcourt. The Board may take judicial notice of
dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ
594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online
dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
6 Printouts from the “Your Body Code” website (www.yourbodycode.com) were attached to
Applicant’s response filed October 19, 2016, p. 51.
7 Id. at pp. 20 and 21.
8 The Examining Attorney relied on the following dictionary defined meaning: “system: a set
of connected things or parts forming a complex whole.” Oxford Dictionaries – U.S. English
version (www.oxforddictionaries.com/us...); attached to Office Action issued on April 19, 2016.
Serial No. 86863331
- 5 -

We have considered Applicant’s arguments concerning some differences in the
marks, namely, Registrant’s mark beginning with YOUR and Applicant’s addition of
the term SYSTEM at the end of its mark. While Registrant’s mark may be suggestive
of a personalized (“your”) consultation, both marks convey the impression that one
will learn a “body code” either via Applicant’s goods or Registrant’s services. As
stated, the term SYSTEM merely informs consumers that Applicant’s audio and
visual recordings are likely sold in a uniform program or series of teaching materials.
Ultimately, we find the marks in their entireties are very similar in appearance
and sound, and they have similar meanings and convey very similar commercial
impressions. Accordingly, this factor favors a finding of a likelihood of confusion.
Relatedness of Applicant’s Goods and Registrant’s Services
We now consider the du Pont factor involving the degree of relatedness, if any, of
Applicant’s goods and Registrant’s services. It is settled that in making our
determinations, we must look to the goods identified in the application vis-à-vis the
services recited in the registration. See Octocom Sys., Inc. v. Houston Computers
Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni
Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
At the outset, we note that Applicant’s identification of goods contains broad and
somewhat vague terms in the description of the fields of “information, coaching, and
training” contained in its audio and video downloads – that is, Applicant describes
the subject matter being taught as “emotional wellness, personal lifestyle and
relationships, emotional and mental health, [and] energy healing.” For example,
Serial No. 86863331
- 6 -

“emotional wellness” and “personal lifestyle”9 could be interpreted in various
manners and encompassing many aspects in any individual’s life. We have therefore
referenced Applicant’s own website printouts, submitted by Applicant in response to
an Office action, to help ascertain the scope of Applicant’s goods, as identified in the
application.10
As described on its website, Applicant’s goods are primarily directed to improving
a person’s psyche and learning about the “subconscious mind.” However, there is also
an emphasis on improving one’s physical health and physical healing. Indeed,
Applicant describes that one will “discover the most effective solutions for unlocking
better health, wealth and relationships!” via Applicant’s goods.11 Applicant also
describes its BODY CODE SYSTEM as “truly a revolutionary new approach to
healthcare.”12 Thus, when Applicant describes its goods as containing instruction in
the field of “personal lifestyle,” we conclude this encompasses lifestyle coaching and
information for sake of improving one’s physical health.
In arguing that Applicant’s goods are related to Registrant’s nutrition
consultation services, the Examining Attorney also points to Applicant’s website and
asserts that it “clearly illustrates that applicant’s goods also contain information,
coaching, and training in the field of nutrition and dietary wellness, directly

9 We take judicial notice that the term “lifestyle” is defined as “the typical way of life of an
individual, group, or culture.” Webster’s New World College Dictionary, 4th Edition, supra.
10 Attachments to Applicant’s response filed October 19, 2016, pp. 21-32.
11 Id. at 22.
12 Id. at 27.
Serial No. 86863331
- 7 -

connecting applicant’s goods and registrant’s services.”13 Specifically, the Examining
Attorney points to the following:14

and

A
The Examining Attorney asserts that the involved goods and services are related
because Applicant’s audio and video downloads involve information, coaching and
training in the fields of “emotional wellness” and “personal lifestyle” and this “often
contains [Registrant’s] ‘nutrition counselling and dietician services.’”15 In support,
she references Internet printouts from various websites and that these illustrate
“multiple examples of individuals and companies that offer a combination of
[Registrant’s] nutrition, dietician … [services, and Applicant’s] emotional wellness,
personal lifestyle, emotional health, and energy healing goods...”16 With regard to

13 6 TTABVUE 13.
14 Applicant’s response filed October 19, 2016, excerpts found respectively at pp. 30 and 32.
15 6 TTABVUE 11.
16 Id.
Serial No. 86863331
- 8 -

some of the websites referenced by the Examining Attorney in the brief, we note the
following information:
Rebecca Scritchfield (www.rebeccascritchfield.com) offers Medical
Nutritional Therapy, “an essential component of comprehensive health
care,” whereby she provides counseling “to clients on behavioral and
lifestyle changes required to impact long-term eating habits and health.”
She also makes podcasts available that are described as being about
“feel[ing] healthy without food rules or diet plans … [and to] explore how
our minds and bodies talk to each other and how they influence our choices.
We’ll tackle what it really takes to transform your habits.”17

The Specht Initiative (www.colinspecht.com), is the website of a new-age
personal fitness trainer Colin Specht who, as part of his services, promotes
a “healthy fit lifestyle” and offers instruction as to “healthy eating
habits.”18

Precision Nutrition (www.precisionnutrition.com) is a website advertising
“personal advice from the world’s best nutrition coaches and fitness
experts,” and includes recorded audio and video “talks.” The recordings are
primarily related to general nutrition and fitness, but also include topics
such as coaching nutrition and “behavioral psychology … for helping every
type of client make important changes.”19

Reverse Diabetes Coach (www.reversediabetescoach.com) is the website of
a certified nutritionist, Christine Lehman, and provides podcasts which
discuss not only nutrition and exercise, but also involve stress
management in the treatment of diabetes. Her holistic approach includes
“mental, physical, emotional, and spiritual blocks.”20

The website A True Transformation (www.atruetransformation.com)
involves a self-described “life coach” and her belief that “fulfilling your
ultimate purpose is to have a body that is in optimal condition.” The
website also discusses “tools to be successful on your fitness journey focus
on mindset, nutrition and fitness …”A Facebook page involving the same
person, “Coach Prime,” appears to make videos available.21

17 Attached to Office action issued on April 19, 2016, at pp. 18-20, 22.
18 Id. at p. 67.
19 Attached to Office action issued on November 4, 2016, at pp. 28-35.
20 Id. at pp. 37-46.
21 Attached to Office action issued on February 14, 2017, at pp 4-6.
Serial No. 86863331
- 9 -

The website (www.lorieeberwellnesscoaching.com) for “wellness coach”
Lorie Eber primarily involves “custom-designed weight loss programs,” but
also offers videos regarding stress control.22

The website “Holistic Pilgrimage” features “nutrition and wellness coach”
Amy Lynn. The website discusses podcasts called Holistic Pilgrimage
where “guests and [Amy] discuss [their] own uniquely personal and
conscious path to health, which may include functional plant-based
nutrition, healthy lifestyle habits, personal developments, and
mindfulness.” A related podcast “that can be quite different from the blog”
is described as “focus[ing] specifically on the personal journeys,
experiences, and perspectives of each person interviewed” and may include
“conversations with professionals in dietetics and holistic nutrition…”23

The third-party website evidence demonstrates that nutrition consultation
services, including weight loss programs, often include helping individuals make
“personal lifestyle” changes and decisions. While some of these websites focus on
physical fitness instruction, like The Specht Initiative, they also counsel clients on
proper nutrition (“healthy eating habits”) and promoting a personal lifestyle (“healthy
fit lifestyle”). In addition, many or most of those offering nutrition consultation
services also provide podcasts or downloadable audio and/or video recordings. For
example, the “Body Kindness Podcast” provided by Ms. Scritchfield, a registered
dietitian and nutritionist, is described as “the perfect podcast if you want to truly feel
healthy without food rules or diet plans … explor[ing] our minds and our bodies talk
to each other and how they influence our choices … tackl[ing] what it really takes to
transform your habits.”24 In other words, as the Examining Attorney asserts, this

22 Id. at pp. 7-12.
23 Id. at pp. 16-20.
24 April 19, 2016 Office action at p. 23.
Serial No. 86863331
- 10 -

evidence helps show that goods like Applicant’s may be “consistently offered in
conjunction with” services like Registrant’s.25
We further find that the references to “nutritional deficiencies” and
“misinformation about the food we eat & the devastating effects it has on our bodies”
on Applicant’s website reveal that nutrition consultation is a topic that will be covered
by Applicant’s materials in order to promote “emotional wellness” or a healthy
“personal lifestyle.” Some fitness, dietetics and nutrition-counselling websites tout
the benefits of eating well to include “emotional wellness” and a healthy “lifestyle.”
Thus, while Applicant may be correct in characterizing its own goods as audio and
video recordings “sold as a course that instructs users how to unlock the power of
their minds to identify and resolve the energies that cause emotional pain, health
imbalances, and obstacles to progress in their lives,” the evidence also shows that
nutrition consultation services are often rendered in conjunction with the promotion
of a healthy “personal lifestyle.”26
We have reviewed the entire record and find that the du Pont factor involving the
relatedness of the goods and services weighs in favor of finding a likelihood of
confusion.
Applicant’s Argument Regarding the ‘‘Coexistence with Other BODY CODE Marks’’
Applicant notes that the Examining Attorney initially cited three registrations as
bases for a likelihood of confusion refusal. These are: the one discussed in this

25 6 TTABVUE 14.
26 4 TTABVUE 13.
Serial No. 86863331
- 11 -

decision27, BODYCODE (Reg. No. 3012449 or ‘449), and BODYCODE SYSTEM
(stylized with a design, Reg. No. 3405213 or ‘213).28 Reg. ‘449 was cancelled during
the prosecution of the involved application and Reg. ‘213 was withdrawn as a basis
for refusal after Applicant submitted a consent agreement with the owner of this
registration. Applicant argues that “[t]he evidence reflects that the judgment of real
parties of interest do not believe that confusion is likely.”29
On this record, we find no tangible evidence demonstrating that the term BODY
CODE is weak in connection with the involved goods and services or that confusion
is unlikely based on the existence (or former existence) of the previously-noted
registrations. There is no evidence that the marks were (or are) even used in
commerce. Indeed, on this record, we can only assume that Applicant and Registrant
are the only entities to share use of the term BODY CODE in their marks in
commerce. Furthermore, we note that the existing ‘213 registration covers services
that are quite different from Applicant’s goods (see Note 27).
Conclusion
In view of our findings that the marks are very similar, and the goods and services
are related, we find that Applicant's mark BODY CODE SYSTEM for “audio and
video downloads providing information, coaching, and training in the fields of

27 See n. 4 above.
28 The ‘449 registration covered software and recording monitors involving human health and
was cancelled on June 10, 2016; the ‘213 registration is for “providing training courses in the
proper use of physical exercise equipment” services and is based on foreign registration
without any allegation of use in commerce in the United States.
29 4 TTABVUE 21.
Serial No. 86863331
- 12 -

emotional wellness, personal lifestyle and relationships, emotional and mental
health, energy healing” is likely to cause confusion with the registered mark YOUR
BODY CODE for “nutrition counseling and dietician services.”
Decision: The refusal to register Applicant’s mark is affirmed.